Thursday, January 25, 2018

In Re Marriage of Clarke and Akel (Cal. Ct. App. - Jan. 24, 2018)

This opinion did not at all turn out to have the facts I thought it'd have.

The first couple of paragraphs of the opinion are great.  They say exactly what the opinion holds.  (Or at least, in the author's opinion, the most important parts of that holding.)

That holding also seems spot on to me:

"Under Family Code section 1615, subdivision (c)(2), a premarital agreement is unenforceable as to a party who was not represented by counsel and who did not have at least seven calendar days between the date he or she was “first presented” with the agreement and the date it was signed. [Cites] Evidence Code section 622 provides that the facts recited in a written instrument, other than the recital of a consideration, “are conclusively presumed to be true as between the parties thereto[.]”

We conclude that when the evidence shows an unrepresented party to a premarital agreement was not provided with the seven-day period for review required by Family Code section 1615, subdivision (c)(2), the agreement’s recitation that the review period was provided is not binding. In other words, the seven-day review period may not be circumvented by inserting language into a premarital agreement acknowledging that both sides had seven days to review the agreement, when in fact they did not."

Totally makes sense, right?  If the statute says you've got seven days, then you've really got to have seven days.  No joke.  Can't just lie about it or say otherwise in the written agreement.

Glad to hear.  Exactly right.

Once I knew what the holding was, I figured the facts of the case would be pretty straightforward.

Maybe Rich Husband sprung a premarital agreement on Trophy Wife the day before the wedding, but said in the agreement that she in fact had seven days when she obviously didn't.  She signed because, hey, that's the deal, but now wants to (properly) get out of the thing.

Or maybe there's a factual dispute between Husband and Wife over whether one of 'em actually had seven days to review the thing, but the trial court thought it didn't have to resolve that dispute because the agreement itself said there was seven days.

Both of those factual settings would make sense.  I'm sure they happen all the time.

But this one was something I didn't suspect.  And in ways that make the details interesting.

Here, it's indeed the Husband that comes up with the proposed premarital agreement.  And, yeah, he presents it a couple of weeks before the wedding to his future bride.

Not exactly romantic, but okay.  That's what I expected.

But it doesn't seem that Husband's necessarily your classic rich dude who's just taking advantage of someone by making a last-minute deal.  He doesn't use an attorney to write the thing.  He downloads it off of Nolo Press (!).  And it's mostly about who'll own a particular house that husband was going to bring to the marriage, and he just wanted to make clear what the deal was with it.

Nor does he seem to be procedurally trying to hose his future spouse.  He gets an attorney for her.  One who goes over the deal on her behalf.  Meanwhile, Mr. Nolo Press simply represents himself.

And there's back and forth.  Wife's attorney asks for modifications, redlines the deal, etc.  The parties meet, go through a couple of drafts, etc.  All in the weeks before the wedding.  Then they strike and sign a deal that everyone's happy with.  Wife's happy.  Husband's happy.  Seems fair to everyone.


The couple gets married the day after they both sign the agreement.  Mazel tov.

Needless to say, there wouldn't be an opinion if everyone lived happily ever after.  Eventually, the parties separate.

So now we gotta figure out if the prenup can be enforced.

Though here's the thing.  It's the HUSBAND who's trying to get out of the thing.

Which is weird, right?  Since he's the one who wanted it, who drafted it, and who proposed it.

But, yeah.  He's the one who wants to get out.  And he's the one in a position to potentially do so, since he's the only one who was unrepresented (and hence is entitled to the seven days).

And indeed he does.  The Court of Appeal throws the thing out.

Wife's got a lot of decent arguments as to why that's silly.  The principal one being that he proposed the thing.  So why shouldn't he be bound?  Especially since there were more than seven days between his draft and when they actually signed.  So he clearly had time to consider things.  Seems like a huge and unjustified windfall to let him get out of a deal that he proposed.

Nonetheless, you can see why the Court of Appeal comes out the way it does.  Yes, it was "basically" his deal.  But Wife's attorney edited the thing.  Those edits were non-trivial (though hardly huge).  So it's technically a "different" deal.  Since he didn't actually have seven full days to review the ultimate redlined version, the statute wasn't satisfied, and the deal goes down.

Wife tries mightily to say that Husband should at least be bound to those parts of the agreement that the attorney didn't change, but no dice.  The thing's an integrated whole.  Husband's not bound.

Fascinating stuff.

And not the facts I expected when I first began reading the thing.