Whether you have a prenuptial agreement in place or are considering entering into one (which could be based on your own idea or your fiance’s), an important question is whether such an agreement is actually legal and valid under California law. If the prenuptial agreement is not valid, then whatever plans and structures were made pursuant to it may not apply, and a judge may instead decide how your financial issues are decided in your divorce, or you and your spouse may need to negotiate anew how matters should be resolved.
Prenups are Legal in California, But Not All Will Be Enforced
Anyone who pays any attention to celebrity news of course knows that prenuptial agreements are, in general, legal agreements (which was not always the case), but particular prenuptial agreements – or at least portions of them – may not be considered valid/enforceable based on California law.
Depending on what situation you are in and what goals you are seeking, it may be the case that:
- You are seeking to create a valid and enforceable prenuptial agreement,
- You are entering into a divorce and are concerned that your prenuptial agreement will not be held up and enforced in your divorce, or
- You are entering into a divorce and are searching for ways to “get out” of the prenuptial agreement that you signed prior to a divorce
In all cases, you should speak with a family law attorney to assess your situation and strategize steps to be taken to meet your goals.
Ways in Which All or Part of a Prenuptial Agreement Might Not Be Enforced
Again, given the enormous amounts of money that can be at stake in a divorce – including division of currently held assets as well as large spousal support payments that might be paid indefinitely – it is critical to work with an experienced California family law attorney to address matters of enforceability both before a prenuptial agreement is finalized and when it comes into play in a divorce. But here are a few common issues to consider.
First, California law requires that both spouses be represented by an attorney in the negotiation and finalization of a prenuptial agreement in order for it to be held valid in determining all financial matters. This means that each party must have his or her own independent legal counsel; one person’s attorney cannot also represent his or her fiance.
Furthermore, a court will look at whether the agreement was entered into voluntarily by both parties. This can be a fact-intensive analysis looking at a variety of factors, such as how long prior to the wedding the agreement was discussed (e.g., in the car on the way to the ceremony is probably not long enough), how informed both spouses were about each other’s finances, and so on.
Finally, even when both spouses were fully informed and represented, certain portions may not be upheld based on public policy. For example, child custody and child support provisions will not be enforced, because the court will make those decisions based on the best interests of the child, not the wishes of the parents. Also, if a court finds that provisions of the agreement are “unconscionable” (meaning grossly unfair) or require the court to look at personal matters in the marriage (e.g. a provision requiring one spouse to pay more if there was cheating), these might not be upheld either.
Get Help From California Family Law Attorneys With Your Prenuptial Agreement
The family law attorneys at The Law Offices of Omar Gastelum and Associates, PLC, with offices in Los Angeles and Newport Beach, have many years of experience representing men and women in negotiating and creating prenuptial agreements. For help with a prenuptial agreement or any other family law matter, contact our office today to schedule a consultation.