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Joseph R. Zoucha, Attorney & Counselor at Law

When are California prenuptial agreements not enforceable?

In California, a prenuptial agreement is a common document that some parties use to protect their interests when they get married. The goal is to shield them in case the union ends in divorce. Many might believe this is limited to those who are wealthy and have significant assets so they can be protected if there is a high asset divorce, but many will seek prenuptial agreements for a variety of reasons. If both sides have properties they want to retain, if there is a business at stake or if they want to have clearly delineated lines of what belongs to each - all are justifications for a prenuptial agreement.

However, even if there is a prenuptial agreement, it is not necessarily airtight. A foundation for dispute is a prenuptial agreement and no matter how conscientiously it was crafted, there are reasons for which the agreement can be unenforceable. Understanding the law and what steps to take to try and eliminate a prenuptial agreement or to make sure it is upheld is imperative and legal help is a must.

In some cases, the agreement was not voluntary. If the agreement was unfair or unconscionable at the time, it is also justification for it to be unenforceable. The party who signed the agreement must have been given a full disclosure and financial obligations of the other party, that person must not have waived that disclosure and the party could not and did not have full knowledge of this information. If that was not given, the document could be unenforceable. The court will decide if the agreement was unconscionable.

The agreement will not be considered voluntary if the person who signed it did not have legal representation or did not seek representation after being advised to do so. The party signing the agreement must have had at least seven calendar days from the presentation of the agreement and the advisement to seek legal counsel before signing it. The person who signed the agreement is required to have been informed of the impact of the agreement and how it would affect them if the marriage ends in divorce. If there was fraud, duress, undue influence or a lack of capacity to understand it, it can be found as unenforceable.

For those who are getting a divorce, the process can be complex and emotionally draining. If there was a prenuptial agreement that is now being called into question, it is imperative for the party who held the property and the party who was asked to sign the agreement understand their rights. A law firm experienced in divorce can help with assessing prenuptial agreements and seeking to uphold it or declare it unenforceable.

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