Why Does Each Party Need an Attorney in Pre-marital Agreements?

By Joseph L. Urbanski

Clients who request our services for a pre-marital or post-marital agreement often do not fully understand the importance of attorney involvement.  They acknowledge that an attorney may present issues not yet considered, but they often discover that there are myriad issues that can be negotiated and others which cannot.  What many clients do not understand is the importance of independent counsel for each other.  The role of independent counsel for each party, beyond educating and advocating for the client, is to ensure that undue influence was not a factor in executing the agreement and that the agreement will hold if ever necessary.

A premarital (or prenuptial or pre-registration) agreement is a contract executed between prospective spouses or partners in contemplation of marriage, and the agreement becomes effective as of the date of marriage.  A marital, or post-nuptial, agreement is a contract executed by couples who are currently married or partnered, which affects marital rights and obligations incident to their marriage.  Of course, most people who enter into these agreements have no intention of “unduly influencing” their spouse or partner.  However, even the slightest bit of pressure on the party who is being asked to sign can draw inferences of undue influence.  While there are provisions that can be added to the agreement to protect against claims of undue influence, the guidance of independent counsel for each party also helps to ensure that both parties executed the agreement of their own free will and without duress; and is one of the most effective ways to have the agreement enforced if ever needed.

The fact that a party executed an agreement without the benefit of an attorney’s guidance is not in itself conclusive of undue influence nor is it grounds to automatically set the agreement aside under normal contract law.  However, under the California Family Code, a premarital agreement is deemed to be involuntary and unenforceable against someone who did not have an attorney unless that person waived representation in writing and was fully informed in writing, of the terms and effect of the agreement upon that party. When it comes to spousal support limitations in a premarital agreement, they are per se unenforceable against a party that was not represented by independent counsel.

The same California Family Code provisions do not apply to marital agreements to invalidate the agreements based on lack of independent counsel.  However, if one spouse or partner gains an advantage over the other, the opportunity to obtain independent legal advice or having had independent counsel may be persuasive to overcome the presumption of undue influence.

The importance of independent counsel cannot be overstated in the context of premarital and marital agreements.  Counsel may help distill your rights, obligations, and avoid any inference of undue influence, so that you can enter into an agreement that is fair to the both parties and tailored to shared goals as a couple.

Calculating Spousal Support on Divorce

When our clients come to us with questions about spousal support (or “alimony”) whether in contemplation of a prenuptial agreement, a post-nuptial agreement, or divorce, they are often fearful of its uncertainty.  Common concerns run from “will my spouse/partner take everything I have?” to “what if I can’t support myself after our marriage?”  While there are no simple answers to these questions, and determination of spousal support varies greatly between couples, California has a set of guiding principles that help parties, and the court, determine spousal support in the event that couples cannot reach an agreement.

For temporary spousal or partner support, many courts use a formula to calculate payments, and those formulas vary from county to county.  To determine ongoing spousal support after a divorce is finalized, there is no concrete formula.  The court must consider factors set forth in California Family Code Section 4320.  These factors include, among others, the length of marriage, each person’s earning capacity, the age and health of the parties, whether there are children, the assets of each party upon divorce, and even the tax impact of an award of support.

Each factor under Section 4320 requires further analysis by the court based on the evidence brought by each spouse or partner.  For example, a determination of earning capacity includes examination of each person’s marketable skills, the amount of time and cost for a person to acquire education or training necessary to develop skills, and whether the ability to earn income was impaired during the marriage due to periods of unemployment and devotion to domestic duties (e.g. spending time away from the workforce to care for children).  Similarly, in looking at the length of a marriage, the court has the discretion to award spousal support to allow a person a “reasonable period of time” to be able to support himself or herself.  While this typically means a determination of spousal support lasting for at least half the length of the marriage, it is within the court’s power to adjust the length of time someone receives spousal support.  We have the ability to run numbers for you taking into account all of the above considerations.

If the couple agrees on the terms of spousal support, even if it is waived by mutual agreement, the court will uphold the agreement as long as it meets certain legal requirements.  Working out the terms with your spouse or partner can be difficult, especially during the emotional period of divorce.  We can help clients understand their options and guide them through the process to alleviate their uncertainty.

Caregiver Statute

California Probate Code Section 21350, also known as the Care Custodian Statute, presumptively invalidates testamentary gifts (gifts left in a will or a trust or even by beneficiary designation) made by an elder to individuals who provided health and social services to the elder. Health and Social services is very broad and can include daily assistance to an elderly person. For purposes of the Care Custodian Statute, “elder” is defined as any individual over the age of sixty-four whose physical and/or mental abilities have diminished as a result of age.

The purpose of the Care Custodian Statute is to protect elderly individuals from predatory people, who would otherwise abuse the reliant, trusting nature of the care custodian relationship to manipulate the elder into giving the care custodian a portion, if not all, of the elder’s estate.

While it is exceedingly important to protect elderly individuals from opportunistic care custodians, not all gifts made by elders to care custodians are suspect or inappropriate.  Indeed, it is common for an elderly individual to desire to provide for the individual(s) who assisted the elder as he or she aged and required additional support.  It is also common that the persons named in an elderly person’s will or trust years ago are those exact persons who later do want to care for the elderly person. In order to protect the elder, the Code requires that gifts made to these people be independently reviewed by an attorney to ensure the elder knowingly made such gift happily and voluntarily.  Persons who are exempt from such review include the elder’s spouse, registered domestic partner, or persons related to the elder by blood.

Additional exceptions are available under the California Probate Code for testamentary gifts from an elder to a care custodian; however, these exceptions are very fact specific and should be discussed with an attorney.

An independent review by separate counsel is not a lengthy or difficult process, but is quite necesssary to ensure that the gift is properly made.

If you are interested in obtaining information regarding the Care Custodian Statute or would like to discuss the process of independent review, please feel free to contact us.