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When might prenuptial agreements be unenforceable?

For Californians who have prenuptial agreements, there can be concerns from both sides as to its enforceability. From the perspective of the spouse who has the assets that he or she would like to protect and the perspective of the spouse who believes he or she is not being treated fairly, it is important to understand the circumstances under which the agreement could be deemed invalid.

In some situations, the agreement will be agreed to involuntarily. If that is the case, then the agreement will not be enforceable. The agreement might have been considered unconscionable at the time of its execution. One or all the following must apply: the party was not granted full disclosure as to what the financial obligations and property belonging to the other party were before signing; there was no voluntarily written waiver to have the financial obligations and property of the other party disclosed; or there was no knowledge of the financial obligations and property of the other party. The courts will determine whether the agreement was unconscionable.

If it was not in writing, the court will decide that the agreement was not agreed to voluntarily except in the following instances: the party who signed the agreement protecting the other party's property had independent legal counsel or waived that right in writing; the party had a minimum of seven calendar days from the time the agreement was presented and was advised to seek counsel to when it was signed; the party, while not represented, was informed of the basics of the agreement and what was being surrendered by signing it and it was explained and understood with the person stating in writing that this was the case; the party who agreed did not do so under duress, because of fraud or undue influence and had the capacity to agree; and other factors that the court finds relevant.

At the end of a marriage when there are significant assets or there was a prenuptial agreement signed as a protective device, there is the chance that it was not done so according to the law and can therefore by deemed unenforceable. If this is the case or there is a dispute over prenuptial agreements, people from either side in the situation should make sure that they have legal assistance from an attorney experienced in all aspects of divorce.

Source: leginfo.legislature.ca.gov, "Premarital Agreements -- 1615," accessed on Nov. 27, 2017

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