What Makes a California Prenup Invalid?
It is important to ensure that your prenup is valid. It does not matter how much you like the terms of your prenuptial agreement, if when you go to enforce the agreement, the court deems the prenup unenforceable. Indeed, at that point you may be in a worse situation than you would be had the prenup never existed, since you had been anticipating that the terms of the prenup would dictate the divorce. Litigating the validity and enforceability of a prenup can get very expensive. This article can help readers understand some of the basic mistakes that people make in crafting a prenuptial agreement that can lead to the agreement being ruled invalid and unenforceable.
Requirements for a Valid Prenup
The prenuptial agreement itself has certain requirements – things that must have happened/be present in order for the California prenuptial agreement to be valid include:
- Both spouses have had at least one week to read and review the written agreement.
- Both spouses have provided each other with complete information about their assets, debts, incomes, and inheritances.
- The document was then signed by both parties voluntarily, under no improper influence.
- The prenup is a written agreement signed by both parties and notarized.
- The prenup terms are lawful.
A Valid Prenup Will Not Include Some Terms
Some items cannot be pre-determined via prenup. This means that if terms discussing certain items are contained in the prenup, it could invalidate the agreement. The courts will, at the least, not enforce terms that pertain to items it is not lawful to include in a prenuptial agreement.
It is improper to address the following items in a prenuptial agreement:
- Child support. A couple cannot pre-determine how child support will be handled. This is a decision left to the California courts.
- Non-financial demands, such as a requirement that a spouse maintain a certain weight.
- Requirements for a spouse to commit an act that is illegal.
The Prenup Needs to Be in Writing
In addition to the terms above, California law specifies that if a party did not sign the agreement voluntarily, or did not have seven calendar days to review it, it may be deemed invalid. Verbal prenuptial agreements are also not binding – it needs to be in writing. Those drafting a prenuptial agreement must also be wary of claims of “improper influence.” A prenuptial agreement needs to be signed by someone knowingly, and of their own free will.
Contact Cardwell, Steigerwald Young
The San Francisco prenuptial and postnuptial agreement lawyers at Cardwell, Steigerwald Young can discuss the specifics of your own case and agreements, and help you know your best steps moving forward.
Source:
aaml.org/wp-content/uploads/MAT206_3.pdf
