Most people don't typically think about a prenuptial agreement when they decide to get married. Some will consider it a bad omen to talk about how money will be divided in case of divorce before they are even legally married. However, in the event of a divorce, what happens if the you or your spouse don't agree with the prenuptial agreement?

The State of California has promulgated the Uniform Premarital Agreement Act, which governs “premarital agreements” defined therein as an agreement between prospective spouses in contemplation of marriage and effective upon marriage.

Premarital agreements must be signed and in writing, but unlike regular contacts, there does not need to be consideration to render the agreement enforceable. You need to know what to include in a California prenuptial agreement.

Contents of a California Premarital Agreement

Under California law, the parties to a prenuptial agreement are permitted to contract with respect to the following:

• The rights and obligations regarding property, whether personal or real property;
• How property should be divided upon divorce;
• The making of a will or trust;
• Ownership of death benefits and/or life insurance;
• The choice of law to govern the agreement; and
• Any other matter involving personal rights as long as they are not in violation of public policy or illegal.

However, it is extremely important to note that the parties may not agree to future child support and visitation rights in a premarital agreement. In fact, the parties may generally not make future agreements in regards to children at all.

These clauses would be rendered void by a court of law, which will always apply the “best interest of the child” standard in making such decisions. The parties may, however, agree to limit or waive spousal support provided both parties were represented by independent counsel at the time the agreement was signed and the agreement is not “unconscionable.”

For example, if a husband takes home $250,000 per year but agreed to pay $50,000 a month in spousal support upon dissolution, this would raise some red flags with the court regarding the validity of the agreement.

Challenging a California Prenuptial Agreement

There are few who enter into a marriage expecting it to end in separation and divorce. However, many assume because you and your spouse made a prenuptial agreement before getting married, there are no legal options to dispute it. This is not always true.

There are several legal options available in order to challenge the validity of a California prenuptial agreement. As such, many parties may seek to challenge the prenuptial agreements they entered into with the expectation that the agreements would never leave the file cabinet. If you are seeking to challenge a premarital agreement, California provides for the following means of invalidation:

• The agreement was not executed voluntarily, meaning if either spouse signed the agreement under duress. This could be achieved by force, manipulation, or fraud.
• The agreement was clearly unfair when executed AND all of the following are true; (1) The party challenging the agreement did not have fair and full disclosure of all assets and financial obligations of the other party; (2) The party did not waive, in writing, the right to know about such assets and obligations; and (3) The party could not have reasonably discovered the assets and obligations.
• If you or the spouse didn't have the mental capacity to consent to the prenuptial agreement at the time it was signed.
• Likewise, if you or the spouse were highly intoxicated with alcohol or under the influence of drugs, the court could consider it a form of mental incapacitation.
• Under California law, each party needs to have an attorney present when the prenuptial agreement is signed, unless it was waived in a separate document. If one spouse was without legal representation, the prenuptial agreement could be considered invalid.

In determining whether the agreement was entered into voluntarily, the court will typically look closely at whether the party challenging the agreement was represented by their own counsel, whether the party challenging the agreement had at least 7 days to review the finalized agreement and seek counsel before the agreement was signed, and whether the party was under duress or there was fraud in the process. Ultimately, the court will decide these issues as a matter of law.

Contact a Los Angeles Divorce Lawyer

If you are in the divorce process or considering separation and are concerned about a premarital agreement, contact the Los Angeles divorce and family law lawyers at Furman & Zavatsky LLP. Our attorneys have the experience you need to advise you about the validly of your premarital agreement and fight for your rights. Call our law firm for a free consultation at 818-528-3471.