Seven Day Wait Period Deemed Not Applicable in Prenuptial Agreement Case


In a recent case entitled, "In re Marriage of Caldwell-Fasco and Fasco," the California First Appellate Court Division held that the seven day waiting period between first presentation of a pre-nuptial agreement and its signing, imposed by Family Code Section1615(c)(2), does not apply where a party against whom enforcement is sought was represented by counsel from outset of the transaction.  

In review of this appellate court decision, it is obvious that the Court does not believe the seven day rule exists for the purpose of providing parties an adequate time to reflect and consider proposed premarital agreements.  The Court of Appeal also squarely placed the burden on the shoulders of the attorney to make sure his client enters into prenuptial agreements knowingly and intelligently.

This common sense decision answers a question that many of us Family Law Attorneys have had while representing clients in negotiating and drafting premarital agreements.  It is very common for people to seek the assistance of a Family Law attorney to draft a premarital agreement a day or two before their wedding.  In the past, when a party wanted representation in such a situation, most Family Law attorneys would decline, knowing that the Family Code imposes a seven day waiting period.

I'm sure that many attorneys will begin taking such cases in light of this decision, but I would advise them proceed with extreme caution. The process of negotiating and drafting a prenuptial agreement can take weeks, if not months.  Obviously we need to make sure our clients understand what they are signing, and we need to ensure that they are not signing the agreement under duress.  Thus, it may not be possible to provide adequate representation of a person while drafting and negotiating a prenuptial agreement just day before the wedding.     

This decision also goes to show you that the existence of a premarital agreement does not eliminate the possibility of having to go to trial during divorce proceedings.   As illustrated in this case, people going through a divorce can spend an enormous amount of time and money litigating the enforceability of a premarital agreement.