Progressive state laws, like California, are written in the following fashion:
When you attempt to enforce a prenuptial agreement against a person who was unrepresented by legal counsel at the time of signing the agreement you must prove that they had been advised to seek independent legal counsel, and that they had expressly waived independent legal counsel in a separate writing.
When you attempt to enforce a prenuptial agreement against a person who was unrepresented by legal counsel, you must prove that he/she 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.
- That he or she was proficient in the language in which the explanation of the party’s rights was conducted and in which the prenuptial agreement was written.
- An explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the prenuptial 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.
In addition, case law can have an even greater impact on the requirements of legal counsel.
Independent counsel is not a requirement of a prenuptial agreement under state statute. The fact that one of the parties’ to a prenuptial agreement was not represented by independent counsel is, in itself, insufficient to have a prenuptial agreement vacated or modified.
Most jurisdictions require, either by statute or case law, that the parties must have had the opportunity to engage and consult with independent legal counsel.
However, when one party has not been represented by independent legal counsel in the preparation of and execution of a prenuptial agreement it can serve to support a claim of fraud, undue influence, verbal promises, coercion, or duress, etc.
If one party was unrepresented by independent legal counsel it is a factor the court will consider in determining whether or not the agreement was entered into voluntarily. When a party is represented by independent legal counsel there can be no fraud, undue influence or duress, as legal counsel will protect their client from the effects of same.
The term voluntary also implies that the parties entered into the agreement knowingly, having fully understood the terms of, and the effect of the agreement. When a party is represented by independent legal counsel there can be no question as to whether the party entered into the agreement knowingly, or whether the party fully understood the terms of, and the effect of the agreement, and had a clear understanding or his or her rights and the consequences of waiving those rights.
Not withstanding the fact that state statute does not require the parties to a prenuptial agreement to have independent counsel we require it as it serves to prevent a prenuptial agreement from being successfully contested.
For example, we look at the potential arguments that can be made when one of the parties’ attempts to contest a prenuptial agreement.
- I didn’t understand the terms of the agreement. The language of the agreement was too complicated for me to understand. The legal terminology was unfamiliar to me.
- I didn’t fully recognize the effect of signing the agreement
- I didn’t fully understand the effect of waiving my rights to the many things that were in the agreement.
- I didn’t know what my rights were or would have been if I didn’t sign.
- I could see a list of my husband’s assets but I didn’t understand it.
- I was pressured into signing the agreement, I was made promises or I was threatened.
- I was relying on the legal advice given to me by my husband’s lawyer.
- I was drunk when I signed the agreement. I was on heavy doses of prescription medication.
When a contesting party has been represented by adequate counsel none of the above arguments can be successful.