Let’s talk about one thing we get asked nearly every day: Can I waive the right to an attorney in my California prenup? The answer is yes, BUT… only in certain situations. Basically, it all boils down to whether or not you are waiving or limiting spousal support in any way in your agreement. We know, we know, there’s always something, right? Well, we’re going to make this easy for you and break it down for you nice and simple in the article below. So, grab your swim trunks/swimsuit, and let’s dive into the topic of waiving legal representation in sunny California.
The right to waive legal representation in your CA prenup
Okay, so here’s the scoop. By default, you’ve got the right to have a lawyer in your corner when it comes to signing a prenuptial agreement. But, some folks might be pondering the idea of giving that right a little wave (get it?) goodbye during their prenup talks. In other words, some people don’t want an attorney when signing a prenup, and they want to “waive their right to legal representation.” This simply means signing off on the agreement without ever consulting a lawyer. You can do that in California on one condition–that you do not alter, modify, or eliminate the right to spousal support in your prenup.
We repeat: You can only waive legal representation in California if you do not touch spousal support in your prenup. This means that if you want to not have an attorney while executing your prenup, you have to be okay with the possibility of paying spousal support one day in a divorce pursuant to California law. This is thanks to California’s Family Code Section 1612 (c), which states:
“Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.”
In plain English, this says that if a couple includes a clause about spousal support in their prenup, it isn’t valid if the person seeking out support in a divorce wasn’t represented by a lawyer when they signed the prenup.
Why can’t I waive legal representation and also waive spousal support in California?
You may be wondering why this is a law in California. Well, it’s simple: Barry Bonds. No, we’re not kidding. The famous CA Barry Bonds case prompted the California legislature to change up its laws surrounding prenups because of the devastating outcome for Barry’s ex-wife, including the requirement of a lawyer if waiving spousal support. The CA legislature understands how impactful it is on a person’s life to waive spousal support, so it’s implied that they wanted to create a safeguard (a lawyer) for folks making that impactful decision.
Let’s talk about the Bonds case, which was decided in 2000 by the California Supreme Court. Barry Bonds, the renowned San Francisco Giants baseball player, and his then-wife Sun tied the knot in 1988. Prior to their marriage, Bonds requested Sun to sign a prenuptial agreement wherein she would relinquish any claims to his income, earnings, or acquisitions during their union.
Bonds enlisted a lawyer to draft the prenuptial agreement, and Sun signed it without seeking legal counsel. Six years and two children later, the couple filed for divorce. Bonds’ income had substantially increased by this time, while Sun had not pursued employment during their marriage. Despite having worked as a waitress and bartender with some training in cosmetology before marriage, her potential earnings were incomparable to Bonds’ income as a famous baseball player. Even though Sun was unemployed when signing the premarital agreement, she willingly waived any claims to her husband’s earnings throughout their marriage.
As anticipated, Sun contested the California prenup, seeking to have it declared unenforceable and requesting spousal support. Her legal team argued that the agreement’s provisions were unenforceable because she lacked legal representation at the time of signing. The Court ultimately favored Bonds, and the prenuptial agreement was enforced. The Court deemed the agreement valid, emphasizing that both parties had entered into it willingly before their marriage.
Thus, this unjust outcome led the California legislature to change the rule– the party waiving spousal support must have an attorney representing them in order to have the waiver enforced. Had this rule been in place before the Bonds case, Sun (Bonds’ wife) would have been able to successfully argue the agreement’s provisions were unenforceable, and she could have sought spousal support.
Procedures for waiving legal representation in CA
If you’re still considering going without a lawyer, there’s a proper way to do it. Essentially, you include a waiver—an entirely separate document from the prenup itself with specific wording stating that you’re comfortable signing the prenup without legal representation pursuant to California’s Family Code Section 1615 (c)(1). This waiver is a document separate from your prenup that is signed separately from the signatures on the prenup itself. The language in the waiver should cover the fact that you were advised to seek the counsel of an attorney at least seven calendar days before signing the agreement, but you’ve chosen not to (among other things). If you’re using HelloPrenup and decide to waive legal representation, we’ve got you covered—we automatically provide you with this waiver page!
In conclusion, navigating the waters of waiving legal representation in your California prenup requires a careful understanding of the underlying conditions. While you do have the option to skip having an attorney, it comes with a crucial stipulation: you can only waive legal representation if you leave the spousal support clause untouched in your prenup. This condition, set by California’s Family Code Sections 1612(c) and 1615 (c)(1), aim to ensure fairness and comprehension in agreements that impact a person’s life significantly.
Frequently Asked Questions (FAQs)
Q: Is waiving the right to an attorney common for prenuptial agreements in California?
A: It varies. Again, it depends on your preferences on spousal support and whether or not you are waiving and/or limiting spousal support in your agreement.
Q: What legal steps must be followed when waiving the right to an attorney for a prenup in California?
A: You must sign a separate writing properly waiving legal representation pursuant to the California Family Code.
Q: What are the potential consequences of waiving the right to an attorney for a prenuptial agreement?
A: If you are not waiving and/or limiting spousal support in your agreement, opting to forgo legal representation in California implies accepting the potential for spousal support being ordered pursuant to the law in case of a divorce. The ramification of waiving an attorney in this scenario is surrendering your right to a comprehensive explanation of the agreement’s terms by a lawyer. In other words, you may not have full clarity on the potential community property assets you’re relinquishing in the agreement. Consequently, if you later assert a lack of understanding to get the prenup thrown out, it becomes challenging to make that claim since you actively chose not to seek legal guidance initially and indeed signed off on a legal waiver stating you understood this.
Raymond Hekmat’s practice of law has been devoted exclusively to areas of California family law focusing on prenuptial agreements, divorce consulting and mediation, since earning his Juris Doctorate degree from Loyola Law School in 2009. During his tenure at Loyola, Raymond was President of the Evening Bar Association, and was awarded the Alumni Association Governors’ Alumni Award. While earning his degree, Raymond worked as a law clerk, and later an associate, for a Beverly Hills family law firm. Prior to founding HLM, Raymond’s practice involved complex family law litigation involving high-asset property division, complex custody litigation, jurisdictional issues, division of community estates and prenuptial agreements.