Frequently Asked Questions
Will my fiancee need to be represented by independent counsel?
Yes. Under the Family Law Code and as an ever growing body of case law makes
clear, both parties need to be represented by independent counsel in the preparation
and negotiation of a premarital agreement. A family law court will put considerable
emphasis on whether the parties were represented by independent counsel in deciding
whether to uphold a matrimonial agreement. Matrimonial agreements which are most
likely to withstand judicial scrutiny are those which are the product of an arm’s length
negotiation in which both parties were represented by independent counsel.
In fact, as a result of amendments to California’s Uniform Premarital Agreement
Act in 2001, the law compels that each party be represented in order for certain
provisions in a premarital agreement to be enforced. As a result, prenuptial agreements
are unlike most private contracts in that the law mandates that parties actually be
represented by independent counsel for them to be enforceable.
For example, Family Code section 1615(c) requires that your fiancé be
represented by independent legal counsel at the time she executes the prenuptial
agreement or, after being advised to seek independent legal counsel, expressly waives,
in a separate writing, representation by independent legal counsel to be effective. Also,
if someone wishes to either modify or waive future spousal support obligations in a
prenuptial agreement, Section 1612(c) of the Family Code requires that your fiancé be
represented by independent counsel for it to be enforceable.