Prenups — Too Close for Comfort
Not a week goes by and there is another celebrity divorce. Never mind that I had not heard of Stephanie March (Law and Order) or Bobbie Flay (celebrity chef). What caught my interest is that the dispute revolves around a “decade old prenup” and the validity thereof. According to “Yahoo! Celebrity” the actress’ attorney, had these words to say, ‘There are profound issues with the agreement that was signed [three days before their wedding] but we will deal with those in court.’
For the purpose of this blog, I will focus on whether a prenup can be challenged because it was too close to the wedding. There is no rule in California that a prenup cannot be signed up until the very day of the wedding. There is a rule that if the parties are not represented by counsel (apparently not the case in the Flay-March prenup), that “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.” Appellate courts have ratified prenups that have been signed close to the wedding date as in Marriage of Bonds (2000) 24 Cal.4th 1, (the day before the wedding), Delorian v. Delorean (1986) 211 N.J.Super. 432 (a few hours before the wedding), In re Marriage of Facter (2013) 212 Cal.App.4th 967 (“just before their wedding”), In re Marriage of Dawley (1976) 17 Cal.3d 342 (pregnant — signed two days before the wedding), In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046 (the day of the wedding), In re Marriage of Cadwell-Faso & Faso (2011) 191 Cal.App.4th 945 (final addendum to the prenup signed two days before the wedding and presented six days before the execution of the agreement), and In re Marriage of Cleveland (1977) 76 Cal.App.3d 357 (the prenup was signed 15 minutes before the wedding)
Challenging a well-drafted premarital agreement is a an uphill battle. Despite the popular belief that “prenups are not worth the paper they are written on”, they actually are enforceable if drafted correctly and the parties are represented by independent counsel. Before entering into a prenup one should carefully evaluate whether the terms are fair and whether they can live under them. Once you execute the prenup, you could be stuck with it. The attorneys at Walzer Melcher LLP are experts on drafting premarital agreements. They can also counsel you on whether you need a prenup, or whether you should sign the one presented to you.