Ignorance is not Bliss: Why States Should Adopt California's Independent Counsel Requirement for the Enforceability of Prenuptial Agreements.

Prenuptial agreements are gaining popularity among Americans as an effective means of financial protection in the event of death or divorce. It is widely accepted that prenuptial agreements merit additional procedural and substantive fairness requirements. However, states have very different requirements for enforcement, and courts often enforce agreements despite the use of unfair bargaining tactics. Requiring the advice of independent counsel ensures that the parties to a prenuptial agreement are aware of the terms of the agreement and demonstrates to the court that it was executed voluntarily. While independent counsel is often one factor that courts consider when examining procedural fairness, it is not a dispositive factor in the majority of states. In order to promote enforceability, create more predictable outcomes, and achieve greater equality in the bargaining process, this Note proposes that states adopt California's statutory provision, or a similar standard, which requires that the party against whom enforcement is sought obtained independent legal counsel prior to the execution of the agreement. In order to preserve the freedom of contract, the statute includes a waiver provision, which allows a party to waive the right to independent counsel as long as that party is fully informed, typically by the other party's lawyer, of the basic terms and effect of the agreement and the rights and obligations he or she is giving up by signing it. Key Points for the Family Court Community Prenuptial agreements differ from ordinary commercial contracts because the parties do not deal at arm's length with each other., States have varying procedural and substantive fairness standards for prenuptial agreements, but many do not provide sufficient protection for vulnerable parties., California requires independent counsel, or waiver, to find that a prenuptial agreement has been voluntarily executed., By adopting an independent counsel requirement like California's, states can ensure informed consent and bargaining equality, while promoting enforceability and predictability. [ABSTRACT FROM AUTHOR]