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When will prenuptial agreements be considered voluntary?

| Dec 20, 2018 | Divorce |

California premarital agreements — also referred to as prenuptial agreements or prenups — are common. These are often used in marriages where there are significant assets at stake, but people can have them for a variety of reasons that transcend simple finances. Of all divorce legal issues that people encounter and result in dispute, the way in which property and assets are split at the end of a marriage is one of the most contentious.

It does not need to be a high asset divorce for this to be a problem. People who have a prenuptial agreement might believe they are protected. However, there are instances in which the agreement could be deemed invalid. One that comes up often is if it was not executed voluntarily. There are various factors that the court must consider before declaring the prenuptial agreement to be invalid because it was not agreed to voluntarily. If, however, certain factors are in place, then the court will consider the agreement to have been willingly agreed to.

If there was independent legal representation when the agreement was signed or if there was advice given that there should be such counsel and a party was expressly waived that right, the prenup may be valid. If the person had at least seven calendar days from when the agreement was presented and was told that he or she should get independent legal counsel and the agreement was subsequently signed, the prenup may be valid.

When a party was not represented by legal counsel, was told of the terms, understood the language and what agreeing to the prenuptial agreement meant with rights and obligations that were to be surrendered with it in writing in a document from the party seeking enforcement, the prenup may be valid. Provided the agreement did not result from fraud, duress or undue influence and the person had the capacity to enter into the agreement, the prenup may be valid. The court can consider other factors that it believes to be relevant.

One of the more complicated situations in a divorce is if there was a prenuptial agreement and there is a disagreement as to its validity. For either side, it is important to understand when such a document is and is not valid. Having legal advice from a law firm that understands all sides of a divorce case can be of assistance in dealing with these matters.

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