Many spouses in California enter into a marriage thinking that having a fully executed premarital agreement is a “bullet proof” way of protecting their assets in case of a divorce in the future. However, it is not as simple as that. Although a premarital agreement offers some protection, the court needs to make certain findings if it’s enforceability is contested by the other spouse. Family Code section 1615, subdivision (c)(section 1615(c)) creates a presumption “that a premarital agreement was not executed voluntarily” unless the trial court makes five designated findings. A premarital agreement is presumed to have not been executed voluntarily, and is therefore unenforceable, unless the trial court finds in writing or on the record that the agreement satisfies the requirements of section 1615(c)(1) and (2). Last v. Superior Court 94 Cal. App. 5th 30. 311 Cal. Rptr. 3d 791.
Family Code Section 1615 (c) provides: For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed.
(2) One of the following:
(A) For an agreement executed between January 1, 2002, and January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and advised to seek independent legal counsel and the time the agreement was signed. This requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement.
(B) For an agreement executed on or after January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel. This requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that the party received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
Although § 1615, subd. (a), places the ultimate burden of proof on the party claiming the premarital agreement is unenforceable, it does not raise a presumption that the premarital agreement is enforceable. It contains a series of objectively ascertainable factors that, if found by the trial court, would overcome the presumption of involuntary execution. Section 1615, subd. (c), in effect creates a presumption that a premarital agreement is unenforceable on the ground it was not executed voluntarily.
In Last v. Superior Court, the trial court granted the wife’s request for temporary spousal support even though there was a premarital agreement which waives spousal support. The trial court did not adjudicate the issue whether the parties’ premarital agreement, which included a provision by which the wife purported to waive any right to receive spousal support in the event the marriage ended in dissolution, was enforceable but granted the husband’s request to bifurcate that issue. A premarital agreement is presumed to have not been executed voluntarily, and is therefore unenforceable, unless the trial court finds in writing or on the record that the agreement satisfies the requirements of Fam. Code, § 1615, subd. (c)(1) & (2). Because the husband did not ask the trial court to conduct a facial review of the premarital agreement and make findings under § 1615, subd. (c)(1) & (2), and because the trial court made no such findings, the agreement had to be deemed to have been involuntarily executed at the time the trial court ordered temporary spousal support. As a result, the trial court retained authority under Fam. Code, § 3600, to award temporary spousal support to the wife. Last v. Superior Court 94 Cal. App. 5th 30. 311 Cal. Rptr. 3d 791.
In light of the above, it is important for the spouse trying to enforce the premarital agreement to ask the court to make the five findings pursuant to Family Code Section 1615 (c)(1) through (5).
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APC. This article is not a solicitation.
Attorney Kenneth Ursua Reyes is a Board Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH U. REYES, APC is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com
