If you’re worried your prenuptial agreement may not be enforceable or valid, you’re not alone. Depending on how your pre-marital agreement was drafted and signed, it may or may not be legally enforceable.
California has adopted its own version of the Uniform Premarital Agreement Act (CA Family Code 1600-1617), which is valid in a number of states. If the parties to the agreement follow the law and procedure as set forth in the California Family Code when drafting their prenuptial agreement, it’s it is likely to be valid. The attorneys at Cianci Law, PC are well-versed in drafting valid and enforceable prenuptial agreements.
It’s important to note that prenuptial agreement must not promote martial dissolution. This means that there cannot be provisions within the agreement that would cause one or both parties to eventually want a divorce (such as offering one party a large spousal support package in the event of a divorce).
Additionally, prenuptial agreements are unenforceable if the agreement was not executed voluntarily, or if the agreement was unconscionable and there was no adequate disclosure. A pre-marital agreement is also unenforceable if it violates policy. To ensure your prenuptial agreement doesn’t violate a policy, both spouses should seek out a credible attorney to represent them.
Independent attorneys must represent both spouses. If your spouse-to-be cannot afford an attorney, you don’t necessarily have to pay their legal bills.
You should make every effort to negotiate and sign the agreement as quickly as possible; you don’t want to wait until the eve of your wedding. Drafting and signing a prenuptial agreement can be stressful for many couples, so you should allow time between the wedding and signing the agreement. The point of a pre-marital agreement is to make the marriage happier, not more tense—schedule your planning accordingly.
Ideally, you want to make sure there are at least seven days before the presentation of the final negotiated agreement, and the signing of the agreement. Both parties must prepare a full and accurate disclosure of their assets and debts. Most importantly, the agreement needs to be fair, and leave both parties with means for providing for themselves in the event of divorce.
The burden of proving the agreement is invalid rests on the party who is claiming that it is invalid. Many agreements appear to be “unfair” when taken at face value but are valid contracts in the eyes of the law. The attorneys at Creative Family Solutions will follow the law to the letter to help you draft a pre-marital agreement that protects your best interests, or showcase how your prenuptial agreement is invalid if it is unenforceable.
Be mindful that a pre-marital agreement must not contain provisions that violate public policy. An agreement may violate public policy if it seeks to promote divorce, to limit child support obligations, if it attempts to limit the court’s power to make child custody decisions in the event of a divorce, or if it seeks to impose moral or religious conduct upon the parties during the marriage. Such provisions can render the entire agreement invalid, and it is best to omit these topics from your pre-marital agreement. If you’re dead-set on including one of these items in the agreement, speak with an attorney to confirm whether doing so is possible.
Special rules apply to provisions concerning spousal support. You cannot waive or limit spousal support unless both parties are represented by independent counsel, or the agreement is unconscionable at the time of enforcement. Unfortunately, unconscionability can only be tested in the future; when it comes time to enforce the agreement. For example, if in your post-nuptial agreement you and your spouse agree spousal support will not be provided by either party in the event of a divorce; but your circumstances have changed dramatically by the time a divorce actually occurs, the original provision disallowing spousal support may be rejected by the court governing the divorce.
While California Courts have not set forth a hard and fast rule defining unconscionability, we know that the agreement is likely unconscionable and invalid if it leaves an ill or disabled spouse unable to support themselves. An individual cannot leave their spouse in a position where they would be reliant on public aid if they have the means to avoid that situation.
If you have questions regarding the validity of your prenuptial agreement, or need help drafting a pre-marital agreement of your own, we can help! Contact us online or give us a call at (916) 797-1575 for a personal consultation.
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