California Family Code § 1615: Enforceability of Premarital (Prenuptial) Agreements

Plain-Language Explanation: California Family Code Section 1615 sets the conditions under which a written premarital agreement is enforceable. In simple terms, it says an agreement cannot be enforced if the spouse challenging it proves either that they did not sign it voluntarily (for example, they were coerced) or that the agreement was unconscionable (grossly one-sided) when signed and the challenging spouse was not given fair disclosure of the other spouse’s finances and obligations.

Section 1615 also requires safeguards for voluntariness. The court must find that the challenging spouse had independent legal advice or knowingly waived it (in writing) at least seven days before signing, had at least seven days to review the final agreement, and – if unrepresented – received a written explanation of the agreement’s terms and the rights being waived. If these conditions are not met (and no valid waiver exists), the agreement is presumed involuntary and unenforceable.

Practical Examples

Example 1: One spouse gives the other a prenup to sign on the day before the wedding, with no time to review or get advice. California courts would likely find this involuntary. For instance, in Clarke & Akel (2018), a husband drafted a prenup and presented it to his fiancée only one day before they signed. The court found this violated the 7-day review rule and written advisement requirements, so the agreement was unenforceable.

Example 2: A wealthy fiancé insists on a prenup that he drafted. His fiancée attends the signing without her own lawyer. In In re Marriage of Bonds (2000), the California Supreme Court upheld the prenup. The court explained that not having an attorney is only one factor to consider; here evidence showed the fiancée understood the agreement and had ample opportunity to seek advice, so her signature was voluntary.

Example 3: Both partners hire lawyers and negotiate a detailed prenup over several months. They sign the final draft only a few days before the wedding. Because both were represented, the strict 7-day rule does not apply. In Cadwell-Faso & Faso (2011), the court held the seven-day waiting requirement does not apply when the challenging party is represented by counsel. The agreement was enforceable even though it was signed in less than a week after the final draft.

Key Cases Interpreting § 1615

In re Marriage of Bonds (2000) – California’s Supreme Court upheld a premarital agreement, finding the wife signed voluntarily. The court said lack of independent counsel is only one factor, and evidence (attorney explanations and her own understanding) supported voluntariness in that case.
Marriage of Clarke & Akel (2018) – The Court of Appeal ruled a prenup unenforceable. The husband drafted the agreement and gave his fiancée less than a day to review. The court found the 7-day notice requirement and the required written advisement had not been met, so the agreement was involuntary.
Cadwell-Faso & Faso (2011) – Both parties were represented by attorneys. The court held that §1615(c)(2)’s seven-day review rule does not apply in that situation. It reversed the trial court’s ruling of involuntariness and found the agreement enforceable.

Full Statutory Text

California Family Code § 1615 (as amended): (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following: (1) That party did not execute the agreement voluntarily. (2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party: (A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. (B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided. (C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. (b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law. (c) 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 he or she 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 he or she 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.

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