The seven day rule before signing a California prenuptial agreement

There are two periods, not one

Almost everything written about signing a premarital agreement in California describes a single seven day wait. There are two. They are set by different parts of the same subdivision, they start counting on different days, and they can end on different days.

The first runs from the day a party is given the final agreement. The second runs from the day a party is told to go and get their own lawyer. If both of those things happen in the same meeting, the two periods start together and you would never notice there were two. If they happen a fortnight apart, which is common, the second period is the one that decides when anybody can sign.

This page sets out both, where each one starts, and what happens when something changes in between. It is general information with the authority for each point, not advice about your own situation.

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)

The first period: from the day the final agreement is handed over

The first period starts when a party is first given the final form of the agreement. Two words in that sentence carry all the weight: first, and final.

"First" means the earliest time that version reached them, not the most recent time it was sent again. Emailing the same document a second time does not restart anything, and it does not need to.

"Final" means the version that is actually being asked for. A working draft circulated for comment is not the final agreement, and handing one over does not start the clock. This matters more than it sounds, because a couple who exchanged drafts in March and signed a finished version in June will sometimes believe the period ran from March. It ran from the day the finished version arrived.

The period is counted in calendar days. Weekends count. Public holidays count. The day the agreement is handed over is day nought, and the earliest a party can sign is the day after the seventh full day has passed.

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)

The second period: from the day a party is told to get their own lawyer

The second period is the one that is almost never mentioned. It runs from the day a party is advised, in writing, to go and retain their own independent lawyer.

It matters in one situation in particular: where a party is not going to have their own lawyer and will sign a separate writing giving up that right. The advice has to have been given far enough ahead that the party had a real chance to act on it. A person told to get a lawyer and asked to waive that right in the same afternoon has not had that chance, whatever the paperwork says.

Where a party does retain their own lawyer, this period has nothing to do. The condition is met by the representation itself.

This office delivers that written advice to the other party at the same moment the final agreement is served on them, so in practice both periods start on the same day. That is a choice about how the office works, not a rule: the two periods are separate and there is nothing stopping them starting weeks apart.

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)

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)

What counts as handing the agreement over

Almost nothing is handed over on paper any more, which raises a question the older articles do not answer: when exactly does a party have the final agreement?

The answer this office works to is the moment the document is actually available to the party, recorded at the time rather than reconstructed later. Serving it through the portal records the instant it was delivered, who it went to, and the hash of the file that was sent, so there is no argument afterwards about which version arrived or when.

Email is worse for this, not because it is slower, but because what it proves is thinner. An email in a sent folder shows that something left; it does not show that it arrived, and it does not show that the attachment was the version anybody now has. Where a matter has to start from an email, this office records that separately and says so.

The practical point for a reader is simple. Whatever route the agreement takes, the date it reached you is the date that matters, and it is worth being able to prove it.

If one party does not read English comfortably

The period assumes a party can actually use the time. Seven days with a document somebody cannot read is not seven days.

Where a party will not have their own lawyer, the written explanation they receive has to be in a language they are proficient in, and so does the agreement itself. Those are two separate requirements, and it is possible to satisfy the first and miss the second: an explanation translated into a language the party reads, attached to an agreement written in one they do not.

This office deals with it before the period starts rather than during it, because a translation produced on day five leaves two days rather than seven.

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)

When the two periods start on different days, the later one governs

If the final agreement arrives on the first of the month and the advice to seek a lawyer was given a week earlier, the first period ends later, and that is the date that matters. If the advice comes after the agreement, the advice period ends later, and that is the date that matters.

In other words the two run in parallel and you wait for whichever finishes last. Nobody gets to average them, and satisfying one does nothing for the other.

The portal this office runs calculates both dates for every party on a matter and shows the later one. It will not open a signing session before that date has passed, and no one at this office can override it: there is no button that shortens the period, because there is no lawful way to shorten it.

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)

What changed on 1 January 2020

The rule as it stands today is not the rule that applied to agreements signed before 2020, and a great deal of what is published about it still describes the older version.

Under the older wording, the period was tied to being advised to seek independent counsel, and there was a long-running argument about whether it applied at all to a party who already had a lawyer. Two Court of Appeal decisions went at that question from different directions, and practitioners disagreed about the answer for years.

An amendment effective on 1 January 2020 settled it by splitting the paragraph in two. Agreements executed between 2002 and 2020 are governed by the older half. Agreements executed on or after 1 January 2020 are governed by the newer half, which runs the period from first presentation of the final agreement and applies regardless of whether the party has a lawyer.

Every agreement this office prepares today is signed under the newer half. If you are reading an older article, or a form from a template site, check which version it describes before relying on it.

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)

If the agreement changes after it has been handed over

Suppose the final agreement goes out, the period starts running, and on day four one party asks for a change. What happens to the clock depends on what the change is.

A change to the substance of the bargain replaces the document a party was given. They have not had seven days with the agreement they are now being asked to sign; they have had four days with a different one. The period starts again from the day the new version reaches them.

A correction that changes nothing about the bargain, a misspelled middle name or a wrong date of birth, is a different matter, and this office records which kind of change it was at the moment it is made rather than deciding afterwards.

The safe assumption, and the one this office works to, is that a change restarts the period unless there is a clear reason it does not. A couple three weeks from a wedding often does not want to hear that. It is better heard then than from the other side years later.

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)

The period cannot be shortened, waived, or agreed away

People ask whether both parties can simply agree to sign early, given that they both want to. They cannot. The period is not a protection either party holds and can give up; it is a condition of the agreement being treated as voluntarily signed at all.

Nor can it be met by signing early and dating the signature later. A signature bearing a date the person was not in the room is a separate and much worse problem than a rushed agreement, and it is the kind of thing that surfaces when it does the most damage.

This office will not prepare an agreement on a timetable that does not allow the period to run. That is not caution for its own sake: an agreement signed inside the period carries a defect that cannot be repaired afterwards, and the couple would have paid for a document that does less than they think it does.

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)

What this means if the wedding is close

Seven days is the floor, not the target. Working backwards from a wedding date, the period is the last thing that has to fit, and several things have to happen before it starts.

The final agreement cannot be handed over until it has been drafted, which needs both parties to have said what they own and what they owe. The other party needs time to read it, and if they are going to retain their own lawyer, that lawyer needs time to review it. None of that is inside the seven days: it is all before day nought.

A realistic run is measured in weeks rather than days. Where a couple comes to this office close to a wedding, the office will say plainly whether the date can be met rather than start work and discover the answer later. Where it cannot be met, the alternatives are to move the signing, or to make the agreement after the wedding instead, which is a different kind of agreement under different law.

The period is one condition among several

The seven days get the attention because they are concrete and countable. They are not the whole of what has to happen before an agreement is signed, and an agreement that satisfies the period and nothing else is not in good shape.

The other conditions are about representation, about what each party knew when they signed, and about the circumstances of the signing itself. Each is set out on its own page, and the page listing every condition ties them together.

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)

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)

How this office handles the period

Every matter runs through a portal. When the final agreement is served on a party, the portal records the instant it was served and the instant the written advice to seek counsel was delivered, and calculates both dates.

The party sees a plain statement of the earliest date they can sign, and a note that the date cannot be shortened. The signing screen does not exist before that date. If a substantive change is recorded against the agreement, the dates are recalculated and both parties are told.

The record of all of this is kept with the agreement: what was served, when, to whom, and what the resulting date was. If the agreement is ever questioned years later, the question of whether the period ran is answered by a record made at the time rather than by anybody remembering.