What To Do When A Prenup Is Unfair
According to a survey conducted in 2016 by the American Academy of Matrimonial Lawyers, prenuptial agreements are “trending” among couples under age 35.
If you currently have a prenuptial agreement, or if you are about to marry and considering a prenup, let our Orange County divorce lawyers help. We’ll guide you on to what makes a prenuptial agreement unfair and unenforceable in California, how to challenge a prenup, and how to create one that is genuinely fair and just.
WHY DO PEOPLE SEEK PRENUPTIAL AGREEMENTS?
Why the rise in the number of prenuptial agreements? People in the 21st century are generally marrying later in life than previous generations married. They are bringing more assets and more properties into their marriages, so they have more to protect.
Prenuptial agreements are growing in popularity and acceptance for a number of reasons. People who have been married know the value of protecting themselves and their assets. Those entering second and or third marriages usually do so with more prudence and thoughtfulness.
If a married couple later chooses to divorce, what can happen if their prenuptial agreement is not fair – if it gives one marriage partner a substantial advantage in the divorce? Can an unfair prenuptial agreement be successfully challenged and tossed out of court?
WHAT CAN A “PRENUP” DO?
Prenuptial agreements in California are contracts that couples who plan to marry may choose to create with the help of a family law attorney. Prenups spell out how alimony will be determined and how the marital assets will be distributed if the couple should divorce.
Prenuptial agreements may protect real estate holdings, retirement accounts, and investments.
Today, however, many bring debts rather than assets into a marriage. Student loans now account for over one trillion dollars of debt in the U.S. A prenup can shield a marriage partner from a spouse’s credit card or student loan debt.
Before they sign a prenuptial agreement, the partners may each obtain legal advice from their own attorneys.
HOW CAN YOU ENSURE THAT YOUR PRENUPTIAL AGREEMENT IS FAIR?
An experienced family law attorney can help you and your partner-to-be draft a prenuptial agreement that protects each of you – and ensures fairness – in the event of a divorce.
The prenuptial agreement goes into effect when the marriage vows are exchanged. Most prenuptial agreements cover the matters that typically arise in a divorce; the rights to property, alimony, life insurance, and even who gets the pets can be decided in a prenuptial agreement.
What a prenuptial agreement cannot do under California law is deny a child the right to support from either of the parents. In any matter that comes before a California court and involves a child, the best interests of the child will be that court’s single highest priority.
At any time during the marriage, a prenup may be amended, redrafted, or even legally canceled if both partners agree. A family law attorney can review your prenuptial agreement – before or after it goes into effect – to confirm that it is appropriate, fair to both partners, and enforceable.
IN CALIFORNIA, WHEN MAY A PRENUPTIAL AGREEMENT BE SET ASIDE?
When married couples with a prenuptial agreement begin the divorce process, if the prenup gives one spouse less than that spouse would receive without the agreement in effect, that spouse may legally challenge the prenuptial agreement, with an attorney’s help, and ask a court to set it aside.
Under California law, prenuptial agreements that have taken effect after 2002 will be enforced by the courts if both partners-to-be were:
1. given full disclosure regarding the other partner’s finances and property before signing
2. given seven or more days after receiving the agreement to consider and sign it
3. advised by different lawyers (unless the right to different lawyers was waived in writing)
Almost no one entering into a marriage believes that the marriage will end in a divorce, so the reality is that most of those who sign prenuptial agreements assume that the agreement will collect dust in a desk drawer or a filing cabinet.
What sometimes happens is that years after signing a prenuptial agreement, if the marriage ends in divorce, the agreement may not, in fact, be as fair and equitable as it seemed ten or twenty years earlier.
HOW CAN A PRENUPTIAL AGREEMENT BE CONTESTED IN A DIVORCE?
If a prenuptial agreement is contested during a California divorce proceeding, the court will determine if the document gives one spouse an unfair advantage. These questions will be considered:
1. Was duress or fraud involved when the prenuptial agreement was signed?
2. Before signing, did both partners fully disclose their financial details?
3. Is California law violated by any provision of the prenuptial agreement?
If you choose to divorce in southern California – or if your spouse chooses divorce – and your prenuptial agreement now puts you at a substantial disadvantage, speak at once to a qualified family law attorney about asking the court to set the agreement aside.
If the court finds that you would be treated more fairly and equitably in the divorce if the prenuptial agreement did not exist, the court has the discretion to set it aside.
The prenuptial agreement may also be set aside if there is any finding by the court that either spouse signed the document due to duress or fraud, without full financial disclosure, or without access to independent legal counsel.
DO COUPLES REALLY NEED PRENUPTIAL AGREEMENTS?
Do couples really need prenups? There is no one-size-fits-all answer. Every couple’s situation is unique. We know that many marriages do not endure, and a prenup can be drafted that protects both partners fairly and equitably.
For most couples, a prenuptial agreement is a smart move, so before you marry, it’s a good idea to learn more. A good family lawyer will be happy to explain how a prenup might work in your particular circumstances.
If you are divorcing and you believe that your prenuptial agreement is unfair and should be set aside, an Orange County divorce lawyer can review the document and handle every aspect of your divorce from the initial filing to the final decree.
Whether you are marrying or divorcing, the advice and insights of a good family law attorney are invaluable. Either way, get the advice and legal help you need, and get that legal help as early as possible. A lawyer’s assistance is your right.