Q: Will my fiancee also need to be represented by his or her own counsel?
A: Both parties should be represented by independent counsel in the preparation and negotiation of a premarital agreement. The case law makes clear that family courts put considerable emphasis on whether the parties are represented by independent counsel in determining whether to uphold matrimonial agreements. California family law courts are clearly of the view that family law attorneys play a critical role in the process of negotiating matrimonial agreements. Courts will strictly scrutinize and be skeptical of agreements that were entered into without the advice of counsel.
Moreover, to improve the odds that a premarital agreement will be upheld by a family law court it is essential that it be fair to both sides. If a premarital agreement is clearly one-sided, such as when one spouse unilaterally surrenders all rights without any consideration in return, it may be declared unconscionable. 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, the Family Code specifically requires that each party be represented for certain provisions in a premarital agreement to be enforceable. As a result, prenuptial agreements are unlike most private agreements in that the law actually mandates that the parties be represented by independent counsel for them to be enforceable. In particular, Family Code Section 1615(c) requires that your fiancé or fiancee be represented by independent legal counsel at the time he or 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 any future spousal support obligations in a prenuptial agreement, Section 1612(c) of the Family Code requires that your fiancee or fiancé be represented by independent counsel for it to be enforceable.
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