§6.04 Agreement Executed Voluntarily

A premarital agreement is not enforceable if the party against whom enforcement is sought proves that party did not execute the agreement voluntarily. [FC §1615(a)(1).]

You must find that a premarital agreement was not executed voluntarily unless you find in writing or on the record all of the following [FC §1615(c)]:

• The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, such representation;
• The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed;
• The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party's rights was conducted and in which the agreement was written;
  • The explanation of the rights and obligations relinquished must be memorialized in writing and delivered to the party before signing the agreement;
  • The unrepresented party must, on or before the signing of the premarital agreement, execute a document declaring that he or she received the required information and indicating who provided that information;
• The agreement and the writings were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement; and
• Any other factors the court deems relevant.

Section 1615(c) was enacted in 2001 largely to overrule Marriage of Bonds (2000) 24 C4th 1. A provision in an agreement regarding spousal support, including a waiver, is not enforceable if the party against whom enforcement is sought was not represented by independent counsel when the agreement was signed, or if the provision is unconscionable at the time of enforcement. Representation by counsel alone does not cure an unconscionable provision. [FC §1612(c).]