Invalidating a Premarital Agreement

CA’s top family law attorneys explain Invalidating a Premarital Agreement in family law

Over the last 20 years, premarital agreements (informally known as prenups) have become increasingly common between engaged and soon-to-be-married couples.  Premarital agreements allow you to protect your property as you enter marriage and also can make divorce more expedient.  However, on occasion premarital agreements are invalidated because they are not properly executed (i.e. drafted by an expert Los Angeles family lawyer). Broadly speaking, there are two types of way to invalidate a premarital agreement: based on the content of the agreement or based on the creation and execution of the agreement. The content of your premarital agreement may make it unenforceable.  Specifically, if the prenup contains invalid provisions, false information about marital property, or incomplete information about property the agreement may not be enforceable. Legally speaking, couples have been given a lot of room by California courts to tailor their premarital agreement to their specific needs.

However, there are some issues that a couple cannot contract around in a premarital agreement.

For example, the couple cannot agree to waive either spouse’s right to child support if they get divorced.  Like all contracts, couples cannot contract to perform illegal activity. What’s more, the agreement is only binding if it fully and accurately discloses the property covered in the agreement and the agreement is unconscionable. In other words, not providing complete information about your property has the same effect as lying about the property covered by the agreement.

Premarital agreements may also be invalidated because of the how the agreement is created and executed.

Simply put, prenups are not enforceable if they are not properly executed and in writing, if they are not read and understood by the parties, if one of the spouse’s does not have adequate time to review the agreement before signing it, if they don’t have the opportunity to consult independent counsel before signing the agreement, or if the agreement is unconscionable.  Long story short: both of the parties must be on equal footing when signing the agreement.  This means that both parties must have adequate time to review the agreement and both parties must have time to speak with independent counsel to help them understand the agreement.  In addition, both parties must enter the agreement willingly.  If one party is inappropriately pressuring the other to sign the agreement or making threats towards them if they don’t sign it, the agreement will not be enforced by the courts.  Finally, like all contracts, the premarital agreement must be written and properly executed in order to hold up in court. If you are considering a premarital agreement, it is important to consult with the expert Los Angeles family lawyers at Walzer Melcher LLP today. – See more at: https://walzermelcher.com/blog/2014/10/14/224/#more-224