California couples are entering prenuptial agreements as a precaution in case of eventual divorce more than ever. The prenuptial agreement is a legal document that helps protect assets and income and spouses themselves from default rules of divorce. Even while entering a prenup, couples hope they will never need to depend on its terms, but they can depend on it being there in case they need it. As the prenuptial agreement is in place to protect in the event of a divorce, that is the best way to go about creating one. Seriously consider how a potential divorce should be handled and include the terms in the document. If a prenup is in place and a couple does end up seeking a divorce, is a prenuptial agreement enforceable in California?
Judges recognize the ability of parties to enter into a legal contract, and they favor prenuptial agreements, but the creation and enforceability of prenuptial agreements are governed by The California Premarital Agreement Act and in certain situations, or when certain factors are present, prenups will not be enforced.
When Will a California Prenup Not Be Enforced?
1. When It is Not Voluntary: If parties did not enter the prenup voluntarily, it would not be enforced. According to the Act, the agreement is not voluntary if the party against whom the prenup is being enforced did not have independent legal counsel with no conflict of interest or properly waive their right to legal counsel when the prenup was signed. To waive their right to legal counsel, the individual must waive their right in writing in a separate document outside the prenup. Parties involved in a prenup are also entitled to full disclosure of the terms, rights, and obligations of the prenup. If a party is not proficient
in English, the agreement must be translated into their native tongue to be valid. The entire purpose of a prenup is that it is based on both parties’ right to enter a contract of their own design and volition freely. If the agreement is not based on free will, it is not enforceable.
2. Failure to Wait: In order for a prenup to be enforced, parties must show that they waited a minimum of seven days before they signed the agreement, that they had the legal capacity to enter a legal contract, and the agreement must have been entered without fraud, duress or undue influence on the side of either party.
3. Unconscionable and Disclosure Requirements Not Met: If a prenup was unconscionable at the
time it was executed, and disclosure requirements were not fulfilled, it will not be enforced. Unconscionable means there is an absence of meaningful choice and the prenup unduly favors one party over the other. To void the prenup’s enforceability, both procedural (unequal bargaining power/unexpected
provisions) and substantive unconscionability (including a one-sided argument without appropriate justification) must be apparent. It must also be shown that the disclosures were not met. The party who does not want the prenup enforced needs to show that they did not receive a fair or reasonable full disclosure about the other party’s assets, finances, financial obligations, etc. and that they did not have the information necessary to consider and agree to the terms.
4. Violates Public Policy: When a prenup violates public policy, it will not be enforced. This can apply to numerous situations: provisions penalizing a party for not living up to specific moral or religious standards or expectations, requirements for liquidated damages in the event of infidelity, rules related to domestic services or companionship, provisions regarding a future child’s religious upbringing, provisions that promote divorce, etc.
5. Spousal Support Provisions: Provisions included in a prenuptial agreement concerning spousal support will not be enforced if the party against whom the agreement is being enforced did not have independent legal counsel when they signed the prenup. A waiver does not suffice in this scenario. Unlike other provisions included in prenups, spousal support provisions are tested for fairness at the time of enforcement rather than the time of inception.
If you need help creating or enforcing a California prenuptial agreement or you need to discuss how a prenuptial agreement could benefit you and your spouse, please get in touch with one of the experienced family law attorneys at The Maggio Law Firm.