An Overlooked Burden of the Premarital Agreement
Justin M. O’Connell is a partner at Cavassa O’Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O’Connell is a Certified Family Law Specialist, served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015, and is currently a member of the California Lawyers Association Family Law Executive Committee. He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey County Superior Court since 2013.
A new dissolution client presents you with his or her premarital agreement and asks if it is valid. You think to yourself, "It depends on if you are the proponent or opponent of the agreement." The immediate reaction is to analyze the agreement to see if it is enforceable, whether an attorney represents the proponent of the agreement (the "Proponent"), or opponent of the contract (the "Opponent"). This peculiar scenario in contract law is one in which both parties are invariably concerned about enforcement, which is due in large part on the objective formalities of formation. However, there is often a subjective component in that an attorney, a client, or a judge harbor individual notions of fairness and justice that do not neatly fit into the four corners of the agreement. After all, what is fair? What is unconscionable? What is a full disclosure of assets? These questions are open with respect to every premarital agreement, which invariably leads to exploration of the possibility of a set-aside.
This subjective component is somewhat contrary to public policy. Such policy supports valid premarital agreements, rather than presuming them to be suspect. To the extent a premarital agreement does not violate public policy, and is freely entered into, premarital agreements are favored by the courts.1 Some courts have noted that premarital agreements are most often viewed as encouraging, rather than discouraging, marriage, which is a value to promote.2