Many Californians sign prenuptial agreements, especially if they are entering into a second marriage or if they have significant assets that they want to shield from the inheritance claims of the new spouse or the operation of the state’s community property laws. Most knowledgeable divorce lawyers will tell clients that a properly drafted prenuptial agreement can enhance marital stability by removing many concerns about property ownership and division if the marriage should unravel. But life can be uncertain, and even the best drafted prenuptial agreement can seem harsh and unfair if the circumstances of one of the spouses changes unexpectedly and dramatically. Legal challenges to prenuptial agreements rarely succeed, but understanding the reasons why courts occasionally refuse to enforce these agreements may help someone understand whether they should mount an attack on their prenuptial agreement.
Failure to follow formal requirements
A prenuptial agreement must be in writing; oral prenups are not enforceable. A prenup must be signed by both parties prior to the wedding. The prenuptial agreement should be notarized or witnessed by two persons over the age of 18. The failure to abide by these formal requirements can result in the invalidation of the entire agreement.
Failure to disclose assets (or debts)
A person who has failed to completely and accurately disclose his or her financial situation, including assets, debts and sources of income, cannot enforce a prenup against the other party.
Coercion in the case of a prenup usually takes one of two forms. One party may threaten to break the engagement or take some other action that may force a person to sign a prenup without due consideration or the opportunity to study information provided by the other party. A second form of coercion is any attempt to prevent the other party from obtaining a review of the agreement by a qualified divorce attorney.
Anyone who is presented with a prenuptial agreement that appears to fall within any of the categories discussed above may wish to have the agreement reviewed by an experienced family law attorney before signing the document.