You have been asked to sign a prenuptial agreement somebody else had written

You have been handed a document by somebody else’s lawyer

Somebody you are marrying has had a premarital agreement prepared, and you have been asked to sign it. The lawyer who wrote it does not act for you. That is not an accident or a slight: it is how these agreements are made, and the alternative would be worse for you rather than better.

This page is written for you rather than for the person who commissioned the document. It sets out what your position is, what has to have happened before you sign, and what your realistic choices are.

It is general information with the authority for each point. It is not advice about your own situation, and reading it does not make this office your lawyer either.

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

The first thing to understand: you are not being rushed by accident

If the document arrived close to the wedding, that is worth noticing, and it is worth saying out loud rather than swallowing.

A period has to pass between the day you are first given the final agreement and the day you sign it, and it is counted in calendar days. It is not a formality and it is not something the two of you can agree to skip because you are both keen to get on with things.

A separate period attaches to the advice to go and get your own lawyer, where you are going to sign without one. Where the two periods start on different days, the later of them is the one that decides when you can sign.

If somebody is pressing you to sign sooner than that, the pressure is the thing to pay attention to, not the date.

On an agreement signed on or after 1 January 2020, at least seven calendar days must pass between the day a party is first given the final agreement and the day that party signs it, whether or not that party has a lawyer. Fam. Code, § 1615, subd. (c)(2)(B)

Where a party is advised to seek their own lawyer rather than retaining one, that advice must be given at least seven calendar days before the final agreement is signed. Fam. Code, § 1615, subd. (c)(1)

You are entitled to your own lawyer, and it matters more than it sounds

You can retain any California lawyer you like. The office that wrote the agreement has no say in who, receives nothing from them, and should not be recommending one.

Whether you do is a real decision rather than a box to tick. Having your own lawyer is one of the conditions the agreement is measured against, and for one kind of term it is the only route: a term about spousal support cannot be made good against you by any waiver you sign, only by your having actually been represented.

If you are not going to retain anyone, there is a specific path: you have to be advised in writing to seek your own lawyer, and you give up that right in a separate signed writing rather than by a line buried in the agreement.

A premarital agreement is not treated as signed voluntarily unless the party against whom it is later asserted was represented by their own independent lawyer when they signed, or was advised to seek one and expressly waived that right in a separate signed writing. Fam. Code, § 1615, subd. (c)(1)

A term about spousal support is not enforceable against a party who was not represented by their own independent lawyer when the agreement was signed. Fam. Code, § 1612, subd. (c)

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

What you must be given if you sign without a lawyer

Signing without your own lawyer is not the same as signing with no protection, and the protections are specific.

You are entitled to a written explanation of what the agreement says and what it does to you, including what you are giving up by signing. Not a summary of the clauses: an explanation of their effect on you.

That explanation has to be in a language you are proficient in, and so does the agreement itself. Those are two separate things and it is possible to be handed one without the other.

And you sign a declaration confirming you received it, which names who gave it to you. If nobody has given you any of this, you have not reached the point where the question of signing arises.

A party who signs without their own lawyer must be given a written explanation of the terms and basic effect of the agreement and of the rights and obligations they are giving up by signing it, must be proficient both in the language of that explanation and in the language the agreement is written in, and must sign a declaration saying they received that information and naming who gave it to them. Fam. Code, § 1615, subd. (c)(3)

What you should have been told about money

An agreement about property written by somebody who has not told you what they own is a document you cannot evaluate.

What each of you has and owes is one of the things a court looks at if the agreement is ever challenged, and the parts of it that depend most on what you knew are the parts most exposed if it turns out you did not know.

In practice this means a schedule: their property, their debts, and yours. If you have been handed an agreement with no figures attached, that is worth asking about before anything else.

You can agree in writing not to receive that disclosure. That is a real option and people take it, but it is a decision to make knowingly rather than by not asking.

This office prepares a written disclosure of each party’s property and debts and serves it before the agreement is signed. It does that because disclosure is one of the things a court looks at if the agreement is ever challenged as unconscionable, and because an agreement is easier to keep to when neither party is surprised later by what the other owned.

Disclosure can also be satisfied where a party already had, or reasonably could have had, adequate knowledge of the other party’s property and debts. Fam. Code, § 1615, subd. (a)(2)(C)

An agreement that was unconscionable when it was signed is not enforceable where the party against whom it is asserted was not given disclosure, did not waive disclosure in writing, and did not otherwise have adequate knowledge. Fam. Code, § 1615, subd. (a)(2)

What the agreement can and cannot do to you

It is worth knowing the outer edges, because agreements sometimes contain things that will not do what they appear to do.

The subjects an agreement may cover are listed, and they are mostly about property: what each of you owns, what happens to it, how it is managed, what happens on separation or death. There is a catch-all for anything else, with a limit on what that catch-all reaches.

Some things are outside it entirely. A child’s right to support is not yours or theirs to bargain away, whatever the document says.

And the agreement only begins to operate if you marry. Until then it is a document about a marriage that has not happened.

A premarital agreement may cover each party’s rights in property, how property is bought, sold or managed, what happens to property on separation, dissolution or death, the making of a will or trust, the ownership of a life insurance death benefit, and which state’s law applies. Fam. Code, § 1612, subd. (a)

A premarital agreement cannot adversely affect a child’s right to support. Fam. Code, § 1612, subd. (b)

A premarital agreement takes effect when the parties marry. Fam. Code, § 1613

What happens if you say no, or ask for changes

Asking for a change is normal and is not the end of the conversation. Most agreements that get signed are not the version that first went out.

One practical consequence is worth knowing before you ask. If a change is made to the substance of the bargain, the version you were given is replaced, and the period before signing starts again from the day the new one reaches you. That is not a penalty for asking: it is the point of the period, which is that you have had the actual document for long enough.

A correction that changes nothing about the bargain, a misspelled name, is a different thing.

And saying no is a real answer. There is no obligation on you to sign, and a wedding is not a reason to sign something you do not understand or do not accept.

A premarital agreement is not enforceable against a party who did not sign it voluntarily, and the statute sets out what a court must find before it treats a signature as voluntary. Fam. Code, § 1615, subds. (a)(1), (c)

Pressure, and what it does to the document

The circumstances of the signing are themselves one of the things that gets examined, separately from the terms.

That covers duress, fraud and undue influence, and whether each person had the capacity to enter into the agreement at all. It reaches the agreement and the writings signed with it, including a waiver of counsel and the declaration about the explanation.

The practical version: being handed a document at the rehearsal dinner, or told the wedding is off without a signature, is not merely unpleasant. It goes to whether the signature counted.

If that is your situation, the thing to do is not to sign and sort it out afterwards. Afterwards is much harder.

A premarital agreement is not treated as signed voluntarily unless the court finds that the agreement, and the writings signed with it, were not made under duress, fraud or undue influence, and that neither party lacked the capacity to enter into it. Fam. Code, § 1615, subd. (c)(4)

A premarital agreement is not enforceable against a party who did not sign it voluntarily, and the statute sets out what a court must find before it treats a signature as voluntary. Fam. Code, § 1615, subds. (a)(1), (c)

If the wedding has already happened

Occasionally the document arrives after the wedding rather than before, and the position is different in a way that matters.

An agreement made between two people who are already married is not a premarital agreement, and the law governing premarital agreements does not reach it. What governs it instead is the duty spouses owe each other, which is a demanding one and runs in both directions.

Where one spouse comes out of such an agreement with an unfair advantage, that duty has something to say about it.

An agreement made after the wedding is not a premarital agreement, and the Uniform Premarital Agreement Act does not govern it. Fam. Code, § 1600 et seq.; Fam. Code, § 1610, subd. (a)

Spouses owe each other a fiduciary duty in their dealings with one another, of the highest good faith and fair dealing, and neither may take unfair advantage of the other. Fam. Code, § 721, subd. (b)

Where one spouse takes an unfair advantage from an agreement made during the marriage, California law may presume undue influence and put the burden on that spouse to show there was none. Fam. Code, § 721; In re Marriage of Burkle (2006) 139 Cal.App.4th 712; In re Marriage of Mathews (2005) 133 Cal.App.4th 624

What an independent review actually is

If you want a lawyer of your own but do not want an open-ended engagement, there is a narrower service: someone acts for you, reads the agreement you have been handed, and advises you on it.

That is what this office provides on the review track, and it is a flat fee quoted before anything begins. The work is a written review of what the agreement does to you, advice on your rights including any spousal support term, the earliest date you should sign, and a certificate for your records confirming that this office reviewed the agreement with you.

The certificate is a record of what happened, not a magic document. What matters legally is that you were represented, not that a certificate exists; the certificate is the evidence that you were.

It is worth being clear about what the review is not. It is not a negotiation on your behalf unless you ask for that separately, and it is not a promise about what the agreement will or will not do years from now.

Where you have been given an agreement drafted by someone else’s lawyer, this office acts as your own lawyer: a written review of what the agreement does to you, advice on your rights including any spousal support, the earliest date you should sign, and a certificate for your records confirming that this office reviewed the agreement with you.

This office quotes a flat fee before any work begins, and the written fee agreement states what it covers, when each part is earned, and your right to a refund of anything not earned.

Where to start

Three questions, in this order. Do you have the final version, and when did it reach you? Have you been given a schedule of what each of you owns and owes? And have you been told in writing to get your own lawyer?

If the answer to any of those is no, that is the conversation to have before the conversation about terms.

If the answers are yes and you simply want somebody to read it with you, that is what the review service is for.