Prenuptial Agreements
Prenuptial agreements are designed to offer clarity and protection, but they aren’t ironclad. While courts won’t set aside a prenup just because one spouse regrets signing it, flaws in how the agreement was created or executed can open the door to challenges. In California, strict requirements must be met for a prenup to hold up in court. If those steps were skipped—or if one spouse was pressured, uninformed, or denied independent counsel—the agreement could be deemed unenforceable.
Prenuptial Agreements
Prenuptial agreements are designed to offer clarity and protection, but they aren’t ironclad. While courts won’t set aside a prenup just because one spouse regrets signing it, flaws in how the agreement was created or executed can open the door to challenges. In California, strict requirements must be met for a prenup to hold up in court. If those steps were skipped—or if one spouse was pressured, uninformed, or denied independent counsel—the agreement could be deemed unenforceable.
Think your prenup might not hold up in court? Don’t wait until you’re in the middle of a divorce to find out.
In theory, a prenuptial agreement should be a benefit to a divorcing couple, providing protections for both parties and clarifying financial expectations to streamline property division. In practice, however, terms that seemed fair and reasonable when the agreement was drafted may come to seem far less so when the end of the marriage is imminent rather than a remote possibility.
A prenuptial agreement can’t be overturned simply because one party is unhappy with what they once agreed to. However, if that agreement is not carefully enacted to follow the law in the state where it was created, it can create valid reasons to challenge a prenuptial agreement and possibly render it unenforceable. Knowing the applicable law and the necessary steps to ensure a prenup is enforceable can help illuminate when an agreement may be overturned.
California Law and Prenuptial Agreements
California’s family code establishes the legal right for prospective spouses to make a prenuptial agreement but also lays out clear guidelines on how that agreement must be executed and what issues it may (and may not) cover. Among the most important provisions are that the agreement must be in writing, with signatures from both parties. While having the signatures notarized is not legally required if both parties are represented by counsel under California Family Code Section 1611, it is highly recommended and commonly required by attorneys. Oral prenups are not enforceable.
The law is also designed to try to protect both parties from being coerced, deceived, or rushed into signing an agreement that is against their interests. To be legal, both parties must enter into the agreement voluntarily and have the mental capacity to do so. They should each be represented by legal counsel at the time of signing (though not required unless there is a waiver of spousal support), and they must have a minimum of 7 calendar days between when they’re presented with the final agreement and when the agreement is signed. Critically, both parties must fully disclose their assets and debts. Finally, the terms of the agreement can’t violate the law or public policy or be extremely and unfairly lopsided in favor of one spouse.
While these requirements may seem relatively straightforward, they can leave a great deal of room for costly mistakes.
What Voids a Prenup in California?
What are situations that could result in a successful challenge to a prenuptial agreement? They all trace directly back to failure to follow the law, including:
- Failure to disclose/hiding financial information: Failing to fully disclose all assets and liabilities when the premarital agreement was written, or misrepresenting the value of assets, is fraud. Proving that one spouse hid assets can be grounds to have it invalidated.
- Signing under duress, coercion, or undue influence: While it may be difficult to prove, showing that one party was unfairly pressured into signing the agreement can render it void.
- Lack of legal representation: The law does not absolutely require each side to have independent legal counsel. However, if conflict arises, the court may find that the agreement was not voluntary if the party did not expressly waive, in writing, their right to counsel or was not fully informed of the terms and effects of the agreement before signing. Thus, a lack of legal representation may become a reason to throw out the contract.
- Failure to follow proper procedures: Not following the 7-day rule or having the signatures witnessed by a notary can call the validity of a prenup into question.
- Unconscionable provisions: Terms that would result in one party being unfairly financially disadvantaged or leave them destitute may result in the agreement being invalidated. The court will look at both the fairness of the agreement when it was drafted and at the time it would be enforced, as changing circumstances may alter the effect of the original terms.
In addition, a prenuptial agreement can’t dictate matters of child custody or child support; these are determined by the best interests of the child during the divorce proceedings. Nor can it include “punishment” clauses that attempt to impose financial penalties for infidelity or other personal behavior, as California is a no-fault divorce state and such provisions would violate public policy. Including any kind of impermissible terms is likely to subject the entire agreement to enhanced scrutiny and may result in the entire agreement being rendered void.
Red Flags That a Prenup Might be Unenforceable
A prenuptial agreement is a legal contract that can, in some cases, guide the division of substantial wealth in the event of a divorce. Unfortunately, any effort that is put into the creation of a prenup may be wasted if it is not done in full compliance with applicable legal requirements (which, as seen above, are substantial). While determining if a particular prenup might be vulnerable to a challenge depends on its provisions and the circumstances around its creation, certain red flags can make it more likely that a prenup wasn’t created properly.
The biggest? If a family law attorney did not write it. Online DIY legal platforms like LegalZoom or AI tools like ChatGPT may seem like a cost-effective way for couples to put a prenup in place, but they can’t provide effective legal guidance to ensure that the agreement is executed correctly or that its terms are both legal and optimized to their individual situation. This approach is especially dangerous for couples who have significant assets, as there is far more incentive for an ex to pore over the details to look for a loophole if the marriage ends. If the agreement was not drafted and executed by a family law attorney, it is far less likely to be enforceable when it’s needed.
Expert Legal Guidance for Prenuptial Agreements in Silicon Valley
Whether you’re seeking to create a prenuptial agreement that fairly protects your financial interests or you need to fight back against one that doesn’t, you need the assistance of experienced family law counsel. The team at Hoover Krepelka thoroughly understands what a comprehensive, legally sound prenuptial agreement must include and will work tirelessly to uphold your rights. To schedule your consultation, fill out the form below today.
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FAQS
Can a prenuptial agreement be overturned in California?
Yes, a prenup can be overturned if it was not executed according to California law or if it is proven to be invalid due to issues like fraud, coercion, or lack of proper disclosure.
What makes a prenup invalid in court?
A prenup may be invalid if one party was pressured to sign, did not have full financial disclosure, lacked independent legal counsel, or if the terms are unconscionable.
How do you challenge a prenuptial agreement?
You can challenge a prenup by presenting evidence that it was improperly executed, based on fraud or duress, or that it violates California’s legal requirements for enforceability.