Want To Get Married? First Negotiate Your Divorce!

In California, premarital agreement practice is codified in California Family Code §§1610-1617. The stringent guidelines set forth in FC §1615 were put in place, in part, in response to the CA Supreme Court decision of In Re Marriage of Bonds (2000).

The Bonds case dealt with the enforceability of the premarital agreement entered into by baseball player Barry Bonds and his then fiancée Susann Margreth Bonds. Barry and Susann signed a prenup the same day they flew to Vegas to get married, and were in fact married the next day. Susann testified that the first time the mention of a prenup was made was outside Barry’s attorney’s office where she was told that Barry would not get married if she didn’t sign the agreement. The trial court found the agreement enforceable. The appellate court reversed. The Supreme Court of California upheld the trial court’s decision finding the agreement enforceable.

Since the Bonds decision indicated that CA premarital practice was essentially the “Wild Wild West,” the legislature (over-re)acted[1] quickly to set things straight.

To paraphrase, FC §1615 sets forth that a premarital agreement is not enforceable against a party if:

  • That party did not execute the agreement voluntarily. Voluntarily means:
    • The party was represented by counsel, or was advised to seek counsel and expressly waived the right to be represented by counsel in a separate writing
    • The party had at least 7 days between the time the agreement was presented to that party and advised to seek counsel and the time the agreement was signed
    • The party, if not represented by counsel, was fully informed of the terms and effects of the agreement, proficient in the language of the agreement and in the language used to explain the terms; AND the party must sign next to the rights being given up; AND the party must sign a separate document declaring that they received all of the necessary information
    • The party was not subject to duress, fraud or undue influence, or lacked capacity
    • Or, any other factors the court deems relevant
  • The agreement was unfair, AND all of the following happened:
    • The party did not receive a full disclosure of the other’s finances
    • The party did not waive, in writing, a full disclosure of the other’s finances
    • The party did not have or couldn’t have full knowledge of the other’s finances

The bottom line in FC §1615 is proper disclosure and representation. I would add, knowledgeable and competent representation.

Aside from the changes to the Family Code, what the Bonds case did, and other celebrity prenup cases like it, was to spark a substantive public conversation regarding premarital agreements. It brought the “four letter word,” prenup, out of the lexicon and practice used only by the exceedingly rich, and made it a household word and concept.

Now, here I sit, eighteen years after the Bonds decision, arguing that no individual over the age of thirty should get married without at least consulting with a family law attorney regarding a premarital agreement.

A consult regarding a premarital agreement will help a non-family law attorney, or a Normal Person, to not only to understand premarital agreements, but also to better understand California family law (namely, issues surrounding community property laws.) Most clients who come in for a divorce consultation only know what they’ve been Googling or what their friends have told them – which is to say – not much or is wildly inaccurate. Clients that come in for a prenup consult typically know even less. But that is the best time to learn and start to understand the nature of the legal contract (marriage) that one is about to enter.

Negotiating premarital agreements is tricky business. On the part of the attorney, it requires extreme patience, delicate emotional considerations, a deep understanding of and practical experience in family law, and even some tough love.

For those on the receiving end of a proposed prenup, it can be off-putting and offensive. Clients in that position often do not understand why their partner is even contemplating divorce before tying the knot.

For those proposing a prenup, there is typically hesitation and doubt, coupled with exterior pressures to ensure the status quo if the stuff hits the fan. And not too many people actually enjoy rocking the boat.

A tactic that I employ to best handle “the talk” with my clients is to speak in hypotheticals about unnamed parties: “Partner 1 and Partner 2”. Using Partner 1 and Partner 2, I run through many different divorce scenarios. Having these hypothetical discussions leads to discovering and then crafting practical relevant terms in my clients’ premarital agreements.

No one is deluded about who Partner 1 and Partner 2 represent. However, if you can take just a little bit of the sting out of the situation, it makes the conversation just that much more palatable.

I always like to end these discussions with a reminder that a premarital agreement is a document you negotiate, execute, and then stick inside of a drawer – never to be referenced again!

 

 

[1] It was arguably an over-reaction since the statute was made retroactive, thus invalidating existing agreements that did not hold up to the new stringent standards.

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