Is My Prenup Valid

Prenuptial agreements, also known as premarital agreements or prenups, are a type of contract entered into by a couple prior to a marriage that details their rights and obligations to each other in the event of a divorce. While these agreements are subject to ordinary contract law, California law also places extra restrictions on them in light of the sensitive nature of the agreements and the close relationship of the parties at the time of signing.


These restrictions come in two forms. First, the law specifies what sorts of obligations a prenup may control, as well as what sorts of things would be outside the bounds of a prenuptial agreement’s purview. Second, the law places extra procedural requirements on the formation of a premarital agreement to ensure that both parties understand what they are signing.


Things a Prenup Can Control


California law has a variety of specific provisions that lay out the sorts of rights and obligations that premarital agreements can confer. The law allows these agreements to cover:


·         The parties’ rights to property and the distribution of property in the event of a dissolution of the marriage;

·         The making of wills or trusts to help enforce the agreement;

·         Rights to death benefits resulting from a life insurance policy; and

·         “Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.”

That last category acts as a general catchall term, but the idea of what qualifies as a violation of public policy can be nebulous at times. One of the easiest examples of a public policy violation, one that is also specifically called out later in the statute, would be contracting away a child of the marriage’s right to support. The state has a policy goal of acting in the best interests of the children during a divorce, so it will not allow a parent to give away a right that belongs to their child.


Spousal support obligations are also given some degree of protection by the statute, though not as much as child support. In order for a provision affecting spousal support to be enforceable, the party that it is being enforced against must have been represented by an independent lawyer during the signing of the premarital agreement. Importantly, not all public policy violations are explicitly named in the statute. For instance, California divorce law does not punish marital misconduct or “fault.” Consequently, courts will not enforce prenuptial agreement provisions that attempt to punish spousal misconduct.


Prenup Formalities


In addition to these substantive restrictions of the validity of a prenup, the law also provides for certain procedural protections. These protections are designed to allow both spouses a full opportunity to read and understand the agreement and to ensure that they are getting a deal to which they can agree. They prevent courts from enforcing a prenuptial agreement against a spouse unless the spouse:


·         Had at least one week between receiving the agreement and signing it;

·         Had complete information on the other spouse’s financial situation; and

·         Was being represented by an independent attorney.


The final protection, the need for legal representation, is not absolute. Courts will still enforce prenups against unrepresented spouses if they waived their right to independent counsel in writing, and if they had the terms of the agreement explained to them so that they understood any rights or obligations that it changed. Additionally, the normal protections of contract law also apply to prenuptial agreements. This means that they can be nullified by mental incompetence during the signing, proof that it was signed under duress, and, in some cases, unconscionability (a profound unfairness of the bargain and the process through which the bargain was struck).


Is my prenup valid? If you are considering drafting a prenup or would like to ensure that your prenup is enforceable, contact a California divorce attorney today. The firm of Walzer Melcher LLP can help provide a strong, clear document that protects your rights.