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How a prenuptial agreement might be invalid

On Behalf of | Oct 17, 2018 | Divorce, Firm News

Prenuptial agreements serve many purposes, but in most cases they are used to provide certainty about the division of assets and payment of alimony in the event of divorce. California has adopted the Uniform Premarital Agreement Act, a statue that specifies the subjects that may be covered in a prenuptial agreement and the requirements for a valid agreement. While the statute answers many questions about prenuptial agreements, it does not speak plainly or loudly when the subject of invalidity arises.

Virtually every state requires that a prenuptial agreement be in writing and signed by both parties prior to the marriage. Different states have different requirements for the formalities of execution. Some require that both signatures be notarized, and other states do not impose such a requirement. California requires only the signatures of the parties; a notarization is not required.

The circumstances under which the parties signed the agreement provide the most common reasons for invalidating a prenuptial agreement. If one party was pressured to sign, the agreement may not be valid. California requires that each spouse must be given seven days to review the agreement before signing it. If one spouse did not read the agreement, it is not likely to be enforced. Both parties must make full disclosure of their finances prior to execution of the agreement. An incomplete or false disclosure will also nullify the agreement. Each party must have the benefit of independent counsel to review the agreement. If the agreement is reviewed by only one lawyer, it may be declared invalid for that reason.

The final reason for declaring a premarital agreement to be invalid is the concept of “unconscionability.” If the agreement is grossly unfair to one party, most courts have the power to declare the agreement to be invalid. Getting the right information can help determine if the possibility of invalid prenuptial agreement may be an issue in a divorce.