Most couples don’t think about prenuptial agreements when getting married. With all the excitement and happiness surrounding a marriage, it may seem strange to consider how your money will be divided in a divorce. But what happens if you or your spouse does not agree with the prenuptial agreement in the event of divorce?
How Does a Prenuptial Agreement Work?
Under the Uniform Premarital Agreement Act, which was enacted in 1986 in California, prenuptial agreements are automatically effective once a couple gets married. In essence, it’s a contract you both sign which designates how money and property will be divided if you divorce. There are a few things a prenuptial agreement can and can’t be. A prenuptial agreement can:
- Divide finances and assets between the spouses, as long as it is not “unconscionable.” For example, if the arrangement would leave one spouse unable to support his or herself financially, it would not be considered conscionable.
- Change the nature of separate or community property (separate is acquired before the marriage, community is acquired after). For example, a prenuptial agreement can turn separate property into community property, or vice versa.
- Waive the rights to alimony, spousal support, or inheritance, as long as the waiver does not affect children.
A prenuptial agreement cannot:
- Include any terms that affect the best interest of the couple’s children. For example, you cannot waive the court’s right to make decisions in the best interest of your child.
- Waive or lessen child support. Child support will always be required by law. You can, however, use the agreement to increase support above what is required by law.
- Generally, a prenuptial agreement that “promotes” divorce will not be enforced. For example, if a spouse will receive a large sum of money or property from the divorce (i.e. it’s disproportionate), it might be considered making the divorce more attractive, and is therefore unenforceable.
What if I Want to Invalidate My Prenuptial Agreement?
You would assume because you and your spouse agreed upon the prenuptial arrangement, there is no way to dispute it, right? In fact, this is not true. There are several ways to challenge the validity of a prenuptial agreement. For example, prenuptial agreements require each spouse to fully disclose his or her finances, assets, and property. Likewise, the agreement must be reasonable and fair, and signed by both parties. Lastly, each spouse is required to have at least 7 days to read and agree with the contract before signing (to give him or her enough time to consult with an attorney).
If any of these conditions haven’t been met, the agreement is invalid. Aside from the terms of the agreement, the court can also invalidate it based on the manner in which it was signed. For example:
- If you or your spouse signed the agreement under duress (by force, manipulation, or out of compulsiveness). Or, if one of you was misrepresented (fraud).
- If you or your spouse did not have the mental ability to consent at the time of signing.
- Similarly, if you or your spouse was highly intoxicated, under the influence of certain drugs, or was ill, the court might consider it mental incapacitation.
- Additionally, California requires each party to have an attorney present when signing, unless the use of an attorney was waived in separate document. If the agreement was signed without an attorney, and without a waiver, it can be considered invalid.
San Diego Divorce Attorneys Specializing in Prenuptial Agreements
Contesting the validity of your prenuptial agreement requires an experienced divorce attorney to represent you in court. Boyd Law is experienced in multiple facets of family law, divorce law, and estate law. We have years of experience and a roster of long-term clients with whom we have built close relationships. Contact us today to discuss your options.