Today, more and more couples are turning to prenuptial agreements as a way to protect their assets in a more fiscally aware times. A prenuptial agreement, also called a “premarital” or “antenuptial” agreement, is a contract made before marriage that discloses each party’s assets and debts and specifies that these stated assets will remain each party’s own separate property after marriage or upon death. However, there may be times when a prenuptial agreement will be considered invalid and not affirmed in court. Here are 8 ways a family law attorney can attempt to get a prenup thrown out in a divorce case:
1. The Prenup was Not in Writing
An agreement that is orally said between two people prior to marriage will generally be invalid and thrown out of court, no matter how specific the terms are. A prenuptial agreement must be in writing to be enforced. An oral agreement will only be valid if either the agreement was fully executed or one of the parties relied on the oral agreement to his or her disadvantage.1
2. The Prenup was Not Signed
A prenup that is not signed by both parties will be disallowed, even if the agreement was in writing. The family court wants to protect individuals from being taken advantage of. If a prenup is not signed by either party, the family court will find that the parties involved might not have known the terms of the agreement and consider the prenup invalid.2
3. One of the Parties was Not Represented by an Attorney
Even if the prenup was in writing and signed by both parties, the prenup may be invalid if either party was not represented by a separate, independent attorney. The family court wants to protect individuals by making sure both parties to the agreement completely understand the terms they are agreeing to.
Where one party is represented by an attorney and the other party is not, there is a chance that the non-represented party may not fully understand the terms of the agreement. Thus, the family court may find the agreement was unfair to the unrepresented party. A party who is not represented by counsel must be informed of the terms of the prenuptial agreement in writing in order for the agreement to be valid.3
4. Seven Days Did Not Pass When the Parties Signed
Even if a prenup is signed by both parties, a family court may throw out the agreement if it was signed within seven days of when the prenup was created. As stated earlier, the family court wants to protect individuals and make sure they were not taken advantage of during the process of creating a prenup. If seven days did not pass before either party signed the prenup, a family court will likely find the parties’ signatures involuntary and consider the prenup invalid.4
5. The Prenup Contains Unfair Provisions
A family court will find a prenup invalid if the terms are unfair to either party. If the terms are unfair and one of the parties could not have known of the wealth of the other party and the party did not waive his/her right to disclosure of the other party’s wealth, the prenup may be considered invalid.5
6. The Prenup is Only Valid Upon Divorce
A prenup cannot outright contemplate divorce and create a positive inventive for one party to seek divorce. Family courts want to encourage the union of marriage and will find a prenup that takes divorce into account before the contract can be in effect is against public policy and the prenup will be invalid.6
7. Special Requirements for Prenups that Regulate Support Responsibilities are Not Met
Although prenups that regulate a party’s support responsibilities are allowed, such terms have a higher level of review than terms that regulate property rights. If the family court finds that a party is not represented by an attorney or that waiver of spousal support is unfair at the time the prenup is supposed to be enforced, a family court may refuse to enforce the spousal support agreement.7
8. The Prenup Limits or Regulates Child Support
A prenup cannot limit or regulate child support. The family court has the final say on the calculation of child support, which is determined by the “best interest of the child” standard.
Call the Divorce Attorneys at Wallin & Klarich
Going through a divorce can be a very tough time for you and your family. That is why it is extremely important to speak with an experienced family law attorney who can help alleviate the burden. If you or a loved one is currently going through a divorce, contact Wallin & Klarich today. Our experienced team of attorneys has been successfully handling family law matters for over 30 years.
Our offices are conveniently located near you in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. We are available 24 hours a day, 7 days a week to provide you with the personal attention you deserve and expect. You don’t have to go through this alone.
Call us today at (888) 749-7428 for a free telephone consultation. We will get through this together.
1. [CA Family Code 1611 – http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617]↩
2. [CA Family Code 1615(c)(1) – http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617]↩
3. [CA Family Code 1615(a)(1) – http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617]↩
4. [CA Family Code 1615(c)(2) – http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617]↩
5. [CA Family Code 1615(a)(2) – http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617]↩
6. [CA Family Code 1610 – http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617]↩
7. [CA Family Code 1612(c) – http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=01001-02000&file=1610-1617]↩
