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Both parties should be represented by independent counsel not
only because it is the prudent thing to do whenever you are entering
into an important agreement that will define your rights and
obligations, but because the Family Code specifically requires
such representation in order for a prenuptial agreement to be
valid and binding on them. Indeed, prenuptial agreements are
unlike virtually any other type of private agreement you can
enter into in California in that the Family Code actually mandates
that the parties to them be represented by independent counsel
for them to be enforceable.
Family
Code Section 1615(c) requires that
your fiancé or fiancee be represented
by independent legal counsel at the time he or she executes the
prenuptial agreement or, after being advised to seek independent
legal counsel, expressly waives, in a separate writing, representation
by independent legal counsel to be effective. In particular,
if you wish to either modify or waive any future spousal support
obligations in your prenuptial agreement, Section
1612(c) of the Family Code requires
that your fiancee or fiancé be represented by independent
counsel for it to be enforceable.
If a prenuptial agreement is clearly
one-sided, such as when one spouse unilaterally surrenders
all rights without reciprocation, it may be declared unconscionable.
Those agreements which are most likely to withstand judicial
scrutiny are the product of arm’s length negotiations
in which both parties are represented by independent counsel.
© 2006-2009 L.A Prenup Lawyer L.L.P,
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