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Rombro & Manley LLP

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Do I have options if I think my premarital agreement is unfair?

On Behalf of | Dec 22, 2022 | Divorce

Before or after a marriage in California, many people want to protect themselves in case the union does not work out and ends in divorce. There are many reasons for this including one spouse having more property and assets than the other; both having significant wealth that would be problematic to sift through and divide if they divorced; and a sudden windfall.

If the couple had a premarital or a postnuptial agreement, it does not automatically mean all the issues such as alimony and property division are settled. Challenges can still arise. One might be that a person claims the agreement is unconscionable.

How does the law define “unconscionability” in a premarital agreement?

According to state law, an unconscionable (unfair) premarital agreement is cause for it to be unenforceable. There are three basic reasons why it might be perceived as such.

First, the person who signed the agreement must have had full disclosure as to the other person’s property or financial situation. If they had items that were of significant value like jewelry, art, classic cars and collectibles, the person agreeing to sign should have been apprised of it. If they owed a great deal of money, they should also have known beforehand.

The agreement is also unconscionable if the person did not waive their right to receive this information. This must be done in writing. In some instances, the person who wants the agreement signed before the marriage could exert some form of pressure such as threatening to call off the marriage if they do not sign. Doing so could nullify the agreement.

Finally, if the person did not have or could not have had sufficient information about the property the other person owned and the financial obligations they had, it could be called into question. The court will assess the case and make its decision as to the fairness or unfairness based on the law.

Premarital agreement disputes should be analyzed with legal guidance

Regardless of why a premarital agreement is created and put into effect, there are sometimes disagreements as to its validity. When creating the agreement, it is important to know how to ensure it is fair. As it is assessed during the divorce, it is also critical.

For assistance in these complex and emotionally challenging matters, it is imperative to have comprehensive representation from the start. This can either ensure that the agreement is applied or help with nullifying it and reaching a fairer result.