19 Cal. App. 5th 914
Cal. Ct. App. 5th2018Background
- Matthew Clarke and Claudia Akel became engaged; Matthew drafted an initial premarital agreement using a Nolo form and emailed it to Claudia in late February 2008.
- Matthew retained attorney Clifford Chernick to represent Claudia; Chernick met with both parties (March 4) and later produced a materially revised draft (March 5) that added waivers and obligations affecting Matthew’s separate property (538 Palomar Drive).
- The final agreement, which included a clause stating each party had received the agreement more than seven days before signing, was executed March 6, 2008; Matthew signed a separate written waiver of counsel.
- Parties later separated and Claudia sought enforcement of the premarital agreement (including lifetime tenancy for Claudia). Trial court found the agreement unenforceable under Family Code §1615(c)(2) (less than seven days’ review) and §1615(c)(3) (no written advisement/waiver of rights for unrepresented party).
- The court of appeal affirmed: the seven‑day protection cannot be circumvented by a false recital in the contract, §1615(c)(3) applies even where the unrepresented party drafted the initial agreement, and the agreement is not severable to salvage self-drafted portions.
Issues
| Issue | Plaintiff's Argument (Claudia) | Defendant's Argument (Matthew) | Held |
|---|---|---|---|
| Whether a written recital in the agreement that each party had >7 days to review conclusively establishes compliance with Family Code §1615(c)(2) under Evid. Code §622 | The recital is conclusive; §622 makes facts in the instrument binding | The recital is false; substantial evidence shows Matthew first received the material final draft on March 5 (and was advised March 4), so he lacked seven days | Recital cannot defeat §1615(c)(2); the seven‑day protection cannot be bypassed by boilerplate—agreement unenforceable on this ground |
| Whether Family Code §1615(c)(3)’s written advisement and waiver requirement applies when the unrepresented party generated the initial draft | §1615(c)(3) should not apply because Matthew drafted the initial agreement himself | Drafting does not substitute for being advised in writing of rights; statute imposes an independent requirement | §1615(c)(3) applies; Matthew was not given the required written advisement/waiver, so agreement also unenforceable on this ground |
| Whether portions of the agreement drafted by Matthew should be enforced and other portions invalidated (severability) | Enforce the provisions Matthew drafted because he had more than seven days between his draft and signing | §1615 treats “a premarital agreement” as a whole; lack of required predicates renders the entire agreement involuntary | Not severable here; absent required advisement/waiver and voluntariness predicates, the entire agreement is unenforceable |
Key Cases Cited
- In re Marriage of Hill & Dittmer, 202 Cal.App.4th 1046 (2011) (interpreting §1615’s voluntariness safeguards, including the seven‑day rule)
- In re Marriage of Caldwell‑Faso & Faso, 191 Cal.App.4th 945 (2011) (discussing burdens to prove compliance with §1615 and the seven‑day requirement)
- In re Marriage of Facter, 212 Cal.App.4th 967 (2013) (severability of unconscionable waivers in a prior §1615 framework)
- City of Santa Cruz v. Pacific Gas & Elec. Co., 82 Cal.App.4th 1167 (2000) (limitations on applying Evid. Code §622 where contract is invalid or negotiations not at arm’s length)
- Bruni v. Didion, 160 Cal.App.4th 1272 (2008) (same—Evid. Code §622 inapplicable where contract invalid or unequal bargaining circumstances)