What To Include in a Prenup (and What Not to)

Prenups are becoming increasingly common.  A well-crafted prenup provides clarity on financial matters, outlining asset division and debt responsibility, during a divorce. However, there are limits to what prenups can dictate.  Working with a legal professional when crafting a prenup is crucial to ensure the prenup is valid and enforceable.

What Can Make a Prenup Invalid?

Certain conditions can make a prenup invalid, including:

• The prenup is not in writing and is not signed by both parties;
• The prenup was not executed “voluntarily.” A prenup is executed “voluntarily” if all the following happened:
  • Parties were represented by independent legal counsel at the time of signing the prenup or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel. The advisement to seek independent legal counsel must be made at least 7 calendar days before the prenup is signed.
  • The parties had no less than 7 calendar days between the time that the parties were first presented with the final prenup draft and the time the final prenup draft was signed.
  • The parties unrepresented by legal counsel was fully informed of the terms and basic effect of the agreement as well as the rights and obligations the party was giving up by the signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of rights and obligations relinquished was memorialized in writing and delivered to the party prior to signing the prenup.
  • The prenup was not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
• The prenup is “unconscionable.” A prenup is considered “unconscionable” if all the following happened before execution:
  • A party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
  • The party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosures provided.
  • The party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Further, terms related to child support are not enforceable in prenups.  And any provision waiving spousal support is not enforceable if the party was not represented by independent legal counsel at the time the agreement containing the provision was signed OR if the provision regarding spousal support is unconscionable at the time of enforcement, meaning the provision shocks the conscience of a reasonable person.

Contact Cardwell Steigerwald Young, LLP

The experienced San Francisco prenuptial and postnuptial agreement attorneys at Cardwell Steigerwald Young, LLP can help you analyze the facts of your situation and help you determine the next best steps in your own prenuptial agreement case. Contact our office today to begin discussing your situation with our experienced team.

Source:

California Family Code sections 1611 – 1615.