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San Jose Divorce Attorney > Blog > Prenuptial Postnuptial Agreement > Will My Prenuptial Agreement Be Enforceable If I File For Divorce?

Will My Prenuptial Agreement Be Enforceable If I File For Divorce?


If you entered into a prenuptial agreement (also known as a premarital agreement) with your spouse prior to the date of your marriage and divorce is now imminent, you are likely wondering if the terms of your prenuptial agreement will be enforceable. Whether you are planning to be the party who files for divorce or your spouse has already filed for divorce, it is important to understand what makes a prenuptial agreement enforceable in California, and what issues could potentially arise in your divorce case to limit the enforceability of a premarital agreement in San Jose.

California Law Has Specific Requirements for an Enforceable Premarital Agreement 

In order for your premarital agreement to be enforceable in a California divorce, there are certain aspects of the prenuptial agreement (and the circumstances surrounding its creation) that must be true. The following are required for a prenuptial agreement to be enforceable:

  • Premarital agreement must be in writing;
  • Parties must have had at least seven days between the date of receiving the final version of the premarital agreement and signing it, giving both parties sufficient time to have a California prenuptial agreement lawyer review the agreement prior to signing;
  • Parties must have had independent counsel (i.e., each party must have had their own lawyer) to advise them about the prenuptial agreement before signing it unless either party waives that requirement (in order to waive this requirement, the parties must have received full information about the effects of signing the premarital agreement, including rights that they may be waiving by signing the agreement, and then the party waiving the right to counsel might sign a document that acknowledges that they understand and have waived their right to a lawyer. However, this requirement cannot be waived is spousal support is at issue in the agreement.);
  • Both parties must have signed the premarital agreement.

At the outset, these requirements are necessary for the agreement to be enforceable. To be clear, if one of the requirements is not met, the agreement may not be enforceable. However, just because these requirements have been met does not automatically mean that an issue will not arise that could render part of the agreement, or the entire agreement, unenforceable.

Aspects or Elements of the Premarital Agreement That Could Mean It Is Unenforceable 

Depending upon the circumstances surrounding the agreement, and the specific information contained within the agreement, certain issues could result in the agreement or one of its parts being found to be unenforceable. Some of the most common issues that can result in a premarital agreement being invalidated in a San Jose case include, for example:

  • Clause waiving rights to child support;
  • Clause penalizing one of the spouses for committing an act of fault during the marriage;
  • Elements that are in violation of public policy, such as child custody decisions in violation of the best interests of the child standards used in California courts;
  • Evidence of duress or coercion of one of the parties in executing the premarital agreement; or
  • Unconscionability of the premarital agreement.

Contact a Premarital Agreement Attorney in San Jose

A San Jose premarital agreement lawyer can discuss elements of a prenuptial agreement that could invalidate it. If you have concerns about the enforceability of your agreement, an attorney at Foster Hsu, LLP can assist you.



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