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AB-1380 Premarital agreements: enforcement.(2019-2020)

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Date Published: 08/13/2019 09:00 PM
AB1380:v96#DOCUMENT

Enrolled  August 13, 2019
Passed  IN  Senate  July 11, 2019
Passed  IN  Assembly  August 12, 2019
Amended  IN  Senate  June 10, 2019
Amended  IN  Assembly  May 01, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1380


Introduced by Assembly Member Obernolte

February 22, 2019


An act to amend Section 1615 of the Family Code, relating to premarital agreements.


LEGISLATIVE COUNSEL'S DIGEST


AB 1380, Obernolte. Premarital agreements: enforcement.
Existing law establishes conditions under which a premarital agreement is not enforceable, including when the party against whom enforcement is sought proves that party did not execute the agreement voluntarily. Existing law, effective January 1, 2002, deems that a premarital agreement was not executed voluntarily unless the court finds, among other things, that the party against whom enforcement is sought (1) was represented by independent legal counsel at the time of signing the agreement or was advised to seek legal counsel and waived representation and (2) had at least 7 days between being first presented with the agreement and being advised to seek counsel and the time the agreement was signed.
This bill would require the advisement to seek independent legal counsel described above to be made at least 7 days before the final agreement is signed. The bill would state that this provision is declaratory of existing law. The bill would also provide, with respect to premarital agreements executed on or after January 1, 2020, that the agreement may not be deemed voluntary unless the party against whom enforcement is sought had at least 7 days between being first presented with the final agreement and signing the agreement, regardless of whether the party is represented by legal counsel.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1615 of the Family Code is amended to read:

1615.
 (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(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. The advisement to seek independent legal counsel shall be made at least seven calendar days before the final agreement is signed.
(2) One of the following:
(A) For an agreement executed between January 1, 2002, and January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and advised to seek independent legal counsel and the time the agreement was signed. This requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement.
(B) For an agreement executed on or after January 1, 2020, the party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel. This requirement does not apply to nonsubstantive amendments that do not change the terms of the agreement.
(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 the party 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 the party received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.

SEC. 2.

 The Legislature finds and declares both of the following:
(a) The amendments to paragraph (1), and subparagraph (A) of paragraph (2), of subdivision (c) of Section 1615 of the Family Code made by this act are declaratory of existing law and do not constitute a change in law.
(b) The addition of subparagraph (B) of paragraph (2) of subdivision (c) of Section 1615 of the Family Code made by this act is intended to supersede, on a prospective basis, the holding in re Marriage of Cadwell-Faso & Faso (2011) 191 Cal.App.4th 945.