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Joseph R. Zoucha, Attorney & Counselor at Law

Is your future ex-spouse saying your prenup is invalid?

Before you got married, you and your spouse entered into a prenuptial agreement that you hoped you would never need. Over the years, you may have forgotten all about it, that is, until recently.

When you realized that your marital relationship was deteriorating, you probably pulled out the document to review it. Once you made up your mind to divorce, you made sure to attach it to the divorce petition in order to avoid a time-consuming and potentially costly battle over the division of your marital property. That's when the trouble began because your future former spouse is asking the court to invalidate your prenuptial agreement.

Why would a California court invalidate a prenup?

Even though it is a challenge to get a court to rule that a prenup is either partially or totally invalid, there are circumstances under which it could happen, including those below:

  • The court could rule that the terms of your prenup are unfair and would leave your ex-spouse at a financial disadvantage.
  • The law requires that you execute the agreement in a certain manner, and if you failed to properly execute your prenup, the court could invalidate it.
  • You or your spouse failed to seek out the representation of a separate attorney, which the law requires except under specific circumstances.
  • Your spouse feels as though you pressured him or her to sign the prenup.
  • Your spouse alleges that you failed to disclose important information. Even if you didn't exclude information on purpose, it could still affect the validity of the prenup.
  • Your spouse could allege that he or she failed to read the agreement because you wanted it signed quickly.
  • Your spouse could claim that some or all of the information you provided regarding your financial situation was false.
  • Your spouse claims that you did not give him or her enough time to review, consider and negotiate the document.
  • You included terms the law considers invalid, unenforceable or illegal.

Your future ex must prove to the court that one or more of the above circumstances existed at the time the prenup was executed, but that does not mean that you shouldn't be prepared to counter any allegations or supposed evidence. The better prepared you are to combat the allegations, the more likely the court will validate your agreement and enforce it.

You should also prepare for the fact that the court may invalidate some or all of your prenuptial agreement. The more prepared you are for either eventuality, the better off you will be as you move forward with the divorce.

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