Wondering when a good time is to bring up the issue of a prenuptial agreement? Maybe there really is no good time as most people view prenuptial agreements as the antithesis of romantic. However, for all practical purposes, the final draft of a prenuptial agreement should be presented to the soon-to-be-spouse with as much time to review as possible, but not less than seven days before the wedding.
Family Code §1615(c)(2) states that it shall be determined that a premarital agreement was not executed voluntarily if “the party against whom enforcement is sought had not less than seven calendar days between the time that the party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.” Assuming a party were to wait the day of or the day before their wedding to sign the agreement, it would need to be presented at least seven days before the wedding for it to be considered that it was “voluntarily” entered into. A finding that it was entered into voluntarily is necessary to enforce the agreement.
In 2011, In re Marriage of Cadwell-Faso & Faso determined that the waiting period mandated by Family Code §1615(c)(2) does not apply to parties who are represented by an attorney at the outset. Meaning, if the attorney helped draft or negotiate the terms of the prenuptial before it was drafted and presented, the seven-day rule does not apply.
The court in Faso stated that while the Family Code states “was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed,” there is a conjunctive phrase that requires presentment of the prenuptial agreement and advice that implies the seven-day rule is for the benefit of unrepresented parties. They interpreted the statute to allow the unrepresented party time to seek the review and advice of counsel before signing the agreement.
While Faso does eliminate the need for the seven-day rule if both parties are represented by counsel, it is still a good idea to provide the prenuptial agreement at least seven days prior to the wedding to avoid the argument that a spouse was coerced into signing the agreement in order to avoid canceling or postponing the wedding at the last moment.