None of us plans to get divorced when we are tying the knot. After all, marriage is about “as long as we both shall live”: getting through all the hardships of life together and living happily ever after.
Some couples get that lucky, but the American Psychological Association statistics show that marriages have only about a 50% chance of lasting. It’s a well-intentioned gamble.
Few starry-eyed couples realize that marriage is a business partnership, too, with profound financial implications. And what businesses enter into a partnership without full disclosure and accounting of the assets involved, as well as legal contracts stipulating rights, obligations, distributions, and ownership arrangements?
If one or both of you had your own wealth and property before getting married, maybe you and your partner did write up a prenuptial or premarital agreement a long time ago. Now that you’re splitting, you may be wondering how that prenup will affect your divorce settlement under California law.
At Seabrook Law Offices in San Jose, none of our clients looks forward to going through divorce proceedings. Fortunately, our experienced divorce attorneys can speed up the process, help the courts fairly enforce—or challenge—an existing prenuptial agreement, and put you on the path towards independence.
Our team is also able to help those entering into a prenuptial agreement as they approach their wedding day. Call the Seabrook Law Offices team at 408-703-1563 to schedule a consultation today.
What Kind of Terms Can a Family Lawyer Include in a Prenuptial Agreement?
In general, contract law provides the basis for prenuptial agreements. Congress codified a few of the most basic common law contract principles in the Uniform Premarital Agreement Act (UPAA) of 1986.
A veteran family lawyer will inform you about the terms you can include in your premarital agreement in California. According to Section 1612 of the UPAA, valid terms of a prenuptial agreement include those related to:
- Property rights and obligations, regardless of location and date of acquisition
- Rights regarding the purchase, sale, use, abandonment, or encumberment of property
- Distribution of property upon separation, divorce, death, or other conditional events
- Formation of an estate plan or other arrangement per the prenup
- Ownership of a life insurance policy and distribution of its death benefits
- Choice of law that will determine the construction of the agreement
- Any other matter that does not contradict the law or public policy
Is a Prenuptial Agreement Enforceable in California?
When hiring a lawyer in divorce proceedings, many clients ask whether prenuptial agreements are enforceable in California.
Some highly publicized divorce cases involving celebrities have demonstrated the limitations of prenuptial agreements. In turn, these high-profile divorce cases have caused some people to question whether the courts will enforce prenups.
Yes, prenuptial (aka premarital) agreements are enforceable in California.
Under the version of the UPAA amended in 2001, a prenuptial agreement must satisfy the following elements for a court to enforce it:
- Full disclosure of all property, rights, and responsibilities affected by the agreement
- Representation by independent counsel, unless waived after full written disclosure
- Expiry of seven days between the presentation and execution of the agreement
- A written contract voluntarily signed by both parties
- Signatures not secured by fraud, intimidation, undue influence, duress, deceit, etc.
- An agreement stamped and signed by a notary
What Terms Can a Divorce Lawyer Successfully Challenge?
If you are in a position in which you believe the prenuptial agreement was unfair or invalid, you may want to legally challenge it. Be sure to fight for the best possible result by hiring a lawyer to contest the terms of a prenuptial agreement.
The California courts may strike down certain terms of your prenup. An experienced divorce attorney can help you get illegal or unfair terms thrown out, which represents a positive step towards you regaining your autonomy and starting a new, financially stable life.
Most divorce lawyers remain acutely aware that courts will find some prenuptial terms unenforceable, including those that the court deems exploitative, deceptive, or otherwise unconscionable. Some terms that are vulnerable to strikedown would be those that:
- Attempt to negate the court’s power to award child support or determine custody
- Disallow spousal support in the event of a divorce (if the spouse did not retain counsel)
- Compel a party to commit a criminal act or violate public policy
- Waive the right to share in an ERISA government retirement plan
- Demand that a child receive a specific type of upbringing after divorce
- Include punitive terms that reinsert fault to divorce cases
- Waive full disclosure of property rights and obligations, except those allowed by law
- Alter the well-established marital obligations of mutual respect, fidelity, and support
How Does a Prenuptial Agreement Become Invalidated?
In California, a judge may invalidate a prenuptial agreement for a variety of reasons. For example, failure to satisfy the UPAA’s required elements could cause a judge to nullify a prenup.
Additionally, a court will invalidate a prenuptial agreement if the couple never gets married after signing the agreement. Also, a postnuptial agreement could invalidate some or all of a premarital agreement.
Some of the other, more specific reasons why a judge might invalidate a prenup include:
- Failure to record a prenuptial agreement in writing
- Lack of signatures (either party or the notary)
- Signatures secured by duress, undue influence, deceit, fraud, etc.
- Lack of independent counsel
- Insufficient time between presentation and execution of the premarital agreement
Divorce Lawyers Near Me: Seabrook Law Offices in San Jose, California
At Seabrook Law Offices, our divorce attorneys, paralegals, and support team possess decades of combined experience in drafting, enforcing, and invalidating prenuptial agreements. Be sure to speak with one of our divorce attorneys if you:
- Need a new prenup before marriage
- Wish to have a prenup enforced upon divorce
- Believe that your prenup contains unfair terms, and you want to challenge it
If you find yourself searching for ‘divorce lawyers near me,’ allow one of our divorce lawyers to review your prenuptial agreement so we can tell you where you stand. Protect the rights of yourself and your children, if any, by engaging a trusted law firm in San Jose, CA. Call Seabrook Law Offices at 408-703-1563 or complete our online form to schedule a consultation today.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.