Was the Premarital Agreement Executed Voluntarily? a Look at the Evolution of the Infamous "7-day Rule"

• Publication year: 2019
• Author: Alleen Markarian

Was the Premarital Agreement Executed Voluntarily? A Look at the Evolution of the Infamous "7-Day Rule"

Alleen Markarian

Alleen Markarian, Esq. is an Associate Attorney at Trabolsi I Levy I Gabbard, LLP, a Los Angeles-based Family Law firm. She graduated from Pepperdine Law School in 2016, earning both a J.D. and a Certificate in the Straus Institute for Dispute Resolution. Ms. Markarian has practiced exclusively in the field of Family Law since passing the California State Bar examination in December 2016.

Acommon question when a divorce case involves a premarital agreement is whether the parties executed the agreement voluntarily. California family law practitioners have been contemplating the following questions for over the last two decades:

• Did the parties have independent legal representation during the negotiation and execution of their premarital agreement?
• When was the first draft of the agreement presented to the other party?
• Did the party who is challenging enforcement of the agreement have seven days between first being presented with the agreement and its execution thereof?
• Were there material changes to the agreement within that seven-day period?
• Does the seven-day rule apply if both parties are represented?
• Does the seven-day rule commence from the first draft or the final draft being presented to the other party?

These questions regarding voluntary execution of a premarital agreement have been a big area of contention in the family law world, and they have been analyzed in several groundbreaking cases since 2000. Some of these cases have answered the aforementioned questions, and others have invited even further inquiry and debate amongst practitioners. One thing is certain - when the Judiciary has interpreted California Family Code section 1615¹ as to voluntary execution in a manner that was disfavored by the community, the legislature has not hesitated to amend the statute to meet the needs of the public.

The first look at the evolution of section 1615 starts with the infamous case, In re Marriage of Bonds.²

In the Bonds case, baseball player Barry Bonds entered into a premarital agreement with his fiancée, whose native language was Swedish, on the eve of their wedding. The agreement was prepared by Bonds' attorney, presented to Bonds' unrepresented fiancée, and included a provision that each party waived any interest in the earnings and acquisitions of the other party during marriage. During their divorce proceedings, wife challenged their premarital agreement, claiming she did not enter the agreement voluntarily.³ The trial court disagreed with wife, controversially upholding the agreement. Wife appealed, and the court of appeal reversed, holding that "premarital agreements are subject to strict scrutiny where the less sophisticated party does not have legal counsel."⁴ The supreme court reversed the court of appeal's holding, determining that "the trial court's finding was in fact supported as the trial court has to consider several factors, including whether a party was represented by independent counsel, when deciding if a premarital agreement was entered into voluntarily."⁵ Prior to 2001, section 1615 did not include a definition for the term "voluntarily" and placed the burden of proving whether or not an agreement was executed voluntarily on the party seeking to challenge the enforcement.

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The shocking Bonds holding caused such up an uproar amongst the family law community and the California Legislature that it led to swift amendments to Family Code section 1615, including adding subsection (c), effective as of January 1, 2001.⁶ The post-2001 statute, commonly referred to as the anti-Bonds statute, also in part shifted the burden from the party challenging the enforceability of the agreement to the party seeking to enforce the agreement to prove that the agreement was in fact executed voluntarily.⁷ The anti-Bonds statute also required the trial court to make the following five designated findings:

1. 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, representation by independent legal counsel.
2. 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.
3. 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 shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
4. The agreement and the

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