Getting a Divorce: How Your Prenup Comes into Play

It has happened. You were both hoping it would not come to this, but it has, and you and your spouse are getting a divorce. As you handle the many details that the divorce process involves, you remember that you had actually planned for this eventuality, you and your spouse had signed a prenuptial agreement. However, you might wonder, how exactly does the prenuptial agreement come into play during the proceedings?

The answer usually depends on the agreement itself. Here are the things you need to be aware of when you head into court with a prenup.

1. The document needs to show ample proof that no financial assets or liabilities were concealed during the time of signing

Basically, your prenuptial agreement should not be fraudulent, and you need to be able to prove that. A major part of this is making sure that you declared everything you needed, to before signing the agreement, but it might also involve you gathering evidence to support this claim.

2. The document needs to be in a legally viable format, and should have been filed properly

This is perhaps the most common reason for a prenup being invalidated in court. Your prenuptial agreement needs to be written out in a paper, preferably by a lawyer, with an equitable distribution of assets, signed by both parties involved under advisement from their legal counsel, and witnessed. If there is any issue in any stage of this process, if your prenup is an oral agreement that you and your spouse came to, for example, then there is a very good chance that the document would not hold up well during the divorce proceedings. If there are any doubts regarding the veracity of your prenuptial agreement, make sure you discuss this with your lawyer.

3. The document needs to be signed by able individuals, and they cannot be coerced or forced

In case you believe you were not thinking clearly due to factors like coercion, manipulation, blackmail, drugs, illness, and so on, when you signed the prenuptial agreement, it might be cause enough for the agreement to be declared invalid. Disclose any doubts you might have had about your or your spouse’s ability to enter a legal, binding agreement with your lawyer before proceedings begin.

4. The agreement must be conscionable

If you signed an agreement which stipulated that you would receive no spousal support under any circumstances where there is a huge disparity of income and wealth between the parties at the time that the agreement was entered into, then it might be in your best interest to have that prenuptial agreement invalidated.  Courts frown upon blatantly unfair or lop-sided agreements that favor one spouse to the vast detriment of the other.

There are many ways in which a prenuptial agreement can affect your divorce proceedings, and to have things go your way, you need to disclose everything about the agreement to your lawyer. Only full disclosure of your agreement, the contents and the circumstances under which it was signed, to your lawyer, can help you during your divorce proceedings.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.