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.