Most experienced family law attorneys will advise clients who are embarking on a second (or third) marriage that they should consider drafting and signing a pre-nuptial agreement. Ordinarily, such advice is very sound. Prenuptial agreements may seem antithetical to the concept of a relationship founded on love and trust, but the future is uncertain and couples who seemed to be very much in love when they wed find that they want to terminate their marriage. What happens to such a couple if they have signed a premarital agreement?
Lack of one or more formal requirements
One the most common reasons that courts will refuse to enforce a prenuptial agreement is the lack of one or more formal requirements. Every state, including California, that permits prenuptial agreements requires that they be in writing and signed by both parties before the wedding. The failure to observe any of these formalities will render the prenuptial agreement void and unenforceable. A party can also render a prenuptial agreement unenforceable by stating that he or she did not read the agreement before signing it. Such an allegation can be difficult to prove, but if supported by probative evidence, this argument is very powerful.
Fraud, failure to disclose facts or undue pressure
Another group of reasons that courts use to invalidate a prenuptial agreement is proof of fraud, failure to disclose material facts or undue pressure to sign. If the spouse who wants to escape the prenuptial agreement can prove that the spouse who wants to enforce the agreement engaged in any of the conduct noted above, the courts will generally refuse to give the agreement legal effect. In California, the statute governing prenuptial agreements specifically requires both parties to make a full and complete disclosure of their financial affairs before the agreement is signed.
Unconscionable when signed
A third reason that courts use to invalidate a prenuptial agreement is a finding that the agreement was unconscionable when it was signed. Generally speaking, unconscionability consists of an act or omission that makes enforcement of the agreement grossly unfair by, for example, forcing one party to forego any claim against the couple’s marital property.
Guidance in prenuptial agreements may be beneficial
Anyone who has signed a premarital agreement and is not considering a divorce may wish to consult an experienced divorce attorney for advice on the enforceability of the premarital agreement.
