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I might be getting divorced: Is my prenuptial agreement valid?

On Behalf of | Jun 17, 2022 | Divorce

In Carlsbad and throughout California, people who have achieved a certain level of success will want to protect themselves. This is true in all areas of their life, even family matters. When getting married, many will want to have a premarital agreement (also commonly referred to as a prenuptial agreement or a prenup) to ensure they have certainty if the marriage happens to end in divorce.

This is not an implication that they have an ulterior motive for getting married. It is essentially a contract stipulating how property will be divided and support will be paid if the marriage does not work out. Even with that understanding, there can be discord over a premarital agreement, especially if a divorce is planned and the parties are disagreeing over the scope of the agreement. They might even suggest that it is unenforceable. When crafting the agreement, it is important to have professional help. When there is a dispute over its contents, it is even more important.

What does the law say about premarital agreements?

When California is mentioned, people automatically think of the entertainment industry and Silicon Valley. Of course, many people accrue their high incomes and wealth in these areas. There are other ways people can become extremely successful whether that it is from starting a business, investing, becoming a licensed professional and in other ways.

With success will come high income, owning properties, automobiles, leisure items and more. A premarital agreement is designed to address how this will be split and what the party who did not have substantial assets at the time of the marriage will get as part of the divorce. The law details certain formalities such as the document needing to be signed by both parties and what it entails.

For example, it will say who owns what; who owes what; who has the right to do as they choose with certain properties; how property will be disposed of when they separate, divorce, if one dies or other events happen; estate planning; insurance; which law oversees how the agreement is constructed; and other concerns. It cannot say how much child support will be paid.

Spousal support – sometimes called alimony – can be specified in the agreement. But if the person who would receive support did not have independent legal counsel at the time, it might not be enforceable. This is also true of the agreement is considered unfair.

When might the agreement be unenforceable in general?

A premarital agreement may not be enforceable. If a person did not voluntarily agree to it, then it could be questioned. There are times when a person is pressured or coerced into signing when they otherwise might not have. Some are not fully aware of the ramifications of signing the agreement and do so under duress. If this can be proven, then it could nullify it. On the other side, if a person had the bulk of the assets and the other party is claiming it was not signed voluntarily when it was signed voluntarily, it is useful to have help with this issue.

Fairness is a key. This is also known as “unconscionability.” If the agreement will leave the person who entered the marriage with significantly less than the other party and that person will have problems making ends meet because of the specifics of the agreement, then it could be called into question.

Premarital agreements can be complex and it is useful to have help

In cases that cannot be negotiated, it is useful to have aggressive assistance to ensure that both sides achieve a result they can accept. Of course, it is preferable to come to a reasonable settlement and avoid rancor. This is particularly true when there are children involved. Still, it is equally crucial to be fully shielded from unfairness or potential wrongdoing.

In high-asset divorce cases where there was a premarital agreement, scrutinizing the document and finding out if it is enforceable, whether the terms are fair and if anything can be done to address lingering issues is key. Calling experienced professionals who understand premarital agreements and the laws surrounding them can help with assessing the case and crafting a strategy to move forward.