Will My Prenuptial Agreement Be Enforced in My Divorce?

Many married couples in the San Jose area have prenuptial agreements, also known as premarital agreements, that they entered into prior to their marriage. Premarital agreements are quite common, and they allow parties who will be getting married to reach agreements about issues, such as the division of assets or debts, or spousal support obligations in the event of a divorce or separation. If you are now planning on filing for divorce, or if your spouse has already filed, you may have questions or concerns about the enforceability of your premarital agreement.

Premarital agreements are designed to be enforceable in the event of a divorce, but there are various reasons that a court can find that a particular provision of a premarital agreement unenforceable, or that the entire agreement is unenforceable. The following are key considerations concerning the enforceability of a premarital agreement in a California divorce.

Rights and Obligations That Can Be Included in a Premarital Agreement

Under California law, the following are issues and elements to which parties are permitted to contract (or reach an agreement) in a premarital agreement:

• Rights and obligations of each party concerning property;
• With regard to property, the right to buy, sell use, transfer, exchange, dispose of, and more;
• How property will be owned or distributed in the event of separation, divorce, or death;
• Agreement to create a will or trust so that the terms of the premarital agreement can be carried out;
• Rights and obligations regarding spousal support;
• Choice of law concerning the enforceability of the premarital agreement (i.e., how and where disputes can be heard); and
• Other matters that are not in violation of California statutes or public policy.

Unenforceability of Specific Provisions

There are certain issues that, if they are included in a premarital agreement, will not be enforced in a divorce or can be found to be unenforceable if certain procedures are not followed when entering into the agreement.

Any agreement that affects a child’s right to support is not enforceable in a premarital agreement.

Spousal support provisions (amount or waiver) can also be unenforceable if the party against whom the provision is to be enforced did not have a lawyer at the time of signing the agreement, or if enforcing the agreement would be unconscionable.

Unenforceability of a Premarital Agreement

While a court simply may strike or decide against enforcing only specific provisions in a premarital agreement, there are some circumstances in which the entire agreement will be unenforceable. Under California law, those circumstances include:

• One of the parties did not voluntarily agree to the terms of the premarital agreement; or
• One of the parties did not have a fair, reasonable, and full disclosure of the other party’s finances or financial obligations, and that party did not expressly waive their right to that information and could not have reasonably had adequate knowledge about that information, thereby making the premarital agreement was unconscionable at the time it was executed.

Contact Our San Jose Divorce and Family Law Attorneys for Assistance Today 

If you have any concerns about the enforceability of your premarital agreement in your divorce, either as someone seeking enforcement or working to show that the agreement is partially or wholly unenforceable, it is important to seek legal advice. An experienced San Jose divorce attorney at Foster Hsu, LLP can speak with you today about the details of your premarital agreement and options for moving forward with your divorce case.

Source:

leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=2.&article=2