Carney & Sugai, LLP - California Legislation

New Law to Effect Previous Agreements

The drafting and enforceability requirements of premarital agreements were just increased, making it more difficult to locate attorneys willing to draft such agreements. In order for a premarital agreement to be enforced, a court must now find that the party against whom the agreement is to be enforced (1) had independent legal counsel, (2) had at least seven (7) days to seek advice regarding the agreement, (3) had waived his or her rights to counsel, if he or she was not represented, (4) did not execute the agreement under duress, fraud, or undue influence and had capacity to enter into the agreement, and (5) was not subject to any other factors the court might deem relevant.

As the court can now take any components it finds relevant into account, it is increasingly difficult to rely on any premarital agreement to be enforceable. These new rules appear to block signing documents on the way to the church, require independent counsel or an informed waiver of counsel on both sides, and demand proof as to capacity. Also, under the "other factors" test, the courts will probably be looking at whether the agreement was "fair" at the time it was signed and, possibly, at the time it is challenged. Finally, and importantly, this new law applies to all premarital agreements, even those previously executed, and may result in current agreements being found unenforceable.

	Premarital Agreements New Law to Effect Previous Agreements The drafting and enforceability requirements of premarital agreements were just increased, making it more difficult to locate attorneys willing to draft such agreements. In order for a premarital agreement to be enforced, a court must now find that the party against whom the agreement is to be enforced (1) had independent legal counsel, (2) had at least seven (7) days to seek advice regarding the agreement, (3) had waived his or her rights to counsel, if he or she was not represented, (4) did not execute the agreement under duress, fraud, or undue influence and had capacity to enter into the agreement, and (5) was not subject to any other factors the court might deem relevant. As the court can now take any components it finds relevant into account, it is increasingly difficult to rely on any premarital agreement to be enforceable. These new rules appear to block signing documents on the way to the church, require independent counsel or an informed waiver of counsel on both sides, and demand proof as to capacity. Also, under the "other factors" test, the courts will probably be looking at whether the agreement was "fair" at the time it was signed and, possibly, at the time it is challenged. Finally, and importantly, this new law applies to all premarital agreements, even those previously executed, and may result in current agreements being found unenforceable.