Find Out if Your Prenuptial Agreement Is Enforceable
If you are getting a divorce and entered into a prenuptial agreement prior to getting married, you may be concerned that you will not get a large enough settlement. While this may be true, there is a possibility that your prenuptial agreement may be invalid.
California lawmakers passed the California Premarital Agreement Act to regulate prenuptial agreements for married couples in the state. If you drafted the agreement yourself, used a template online, or worked with an attorney unfamiliar with this law, the agreement, or portions of it, may not be enforceable. If so, this will place you in a better bargaining position.
Is Your Prenuptial Agreement Enforceable?
For any prenuptial agreement to be valid, it must meet the criteria established under the California Premarital Agreement Act and the updates to the law that were passed in 2002. This means that it must meet all of the following criteria:
- Be Voluntarily Entered Into – The agreement has to be signed without anyone being forced, under duress, or not having the mental capacity to understand what he or she is doing.
- Be Understandable to Both Parties – If one spouse doesn’t speak English very well, it must be translated into his or her native language prior to being signed.
- Full Disclosure Must Be Given – If one party holds back financial information or anything relevant to the agreement, it could be voided. An example would be finding out that your spouse had investments or property holdings you were unaware of.
- Legal Counsel Must Be Available or Waived – In California, both parties have the right to independent counsel. A waiver must be signed if someone doesn’t want an attorney. If you never had a lawyer or opportunity to retain one, the agreement won’t be enforceable.
- No Fraud Can Exist – If something was purposefully hidden or fraud contributed to the signing of the agreement, it would be invalid.
- Cannot Be Unconscionable – One-sided agreements may be construed as unconscionable, so if you think the agreement is unfair, the court may as well.
- Cannot Violate Public Policy – Your prenuptial agreement cannot violate state or federal law.
If you think that your prenuptial agreement does not meet these criteria, schedule a consultation with our office to go over your agreement in detail.
The Seven-Day Rule
Did you know that both parties have to wait seven days after receiving a prenuptial agreement to sign it? If either of you didn’t wait long enough, the agreement may not be valid.
Spousal Support Clauses Must Be Fair
Even if your agreement is enforceable holistically, any spousal support clauses must pass the fairness test. If a judge feels these clauses will not be fair when the contract is enforced, these provisions will be left out.
Keep in mind that it could have been fair when the agreement was signed, but if that was twenty years ago, the economy and cost of living have changed drastically, so any spousal support provisions will need to be updated accordingly.
What a Prenuptial Agreement Can’t Do
There are certain things that cannot be determined by a prenuptial agreement:
- Child support and custody
- Your share of an ERISA-governed employee benefit plan
- Penalize one spouse for fault
Prenuptial agreements trying to regulate child custody should be reviewed and can be fought in court.
You Have Options
If you feel that your prenuptial agreement is unfair or that you are not getting the divorce settlement you rightfully deserve, you should call the Law Office of Laurence J. Brock at 909-466-7661 or complete the form below.
We can review your agreement and let you know if it meets state law requirements while identifying any provisions that don’t. It may be possible for you to increase your divorce settlement by going to court and challenging it.
Share with Your Friends
If you know someone who is going through a divorce, share this post with them. You may prevent them from accepting the status quo and a settlement that is simply unfair.