If you are seeking a California divorce, keep in mind that your prenuptial agreement might not hold up in court. Santa Clara County family law attorneys say there are several different reasons why the state might choose to throw out your prenup.
Failure to Disclose Assets.
A prenup can be thrown out is if it is found to be fraudulent. For a prenup to be legally valid, both parties need to make a full disclosure of their assets, or make an informed and written waiver of that full disclosure. It is a basic principle of California contract law that if you do not know what you are giving up then an agreement stating that you gave it up could be thrown out by the Court. If you or your spouse omitted assets or failed to disclose them all together, this could cause your prenup to be thrown out.
Signed Under Coercion or Diminished Mental Capacity.
Both parties must sign a prenup of their own free will. If one person can prove that the prenup was signed under coercion or if one party lacked the mental capacity to understand the provisions of the prenup, a Judge can throw out the agreement. Threats to call off the wedding if one person did not sign the prenup should not, by themselves, count as the sort of coercion that could void the prenup, as that is the essence of the deal; however, when combined with expensive wedding plans and the social pressure of having a long planned wedding called off, might be enough to undo the written prenup. In California, if the prenup is first presented less than seven (7) days before the wedding it is presumed that a form of Undue Influence and/or Coercion tainted the agreement and it can be voided for being sprung on the other party too close to the wedding date. Being under the influence of drugs or alcohol at the time the agreement was signed could qualify as having diminished mental capacity, but being hopelessly blinded by love probably would not.
No Legal Representation.
Both parties need to have legal representation when preparing and signing a prenup. When there are attorney signatures for both parties on the written prenup a Court will presume that the parties had an understanding of the law, and that the prenup was explained to them. Without an attorney on each side there is a real risk that the Court could find all kinds of problems with the prenup (Lack of Understanding, Lack of Capacity, Undue Influence, Duress, etc.) Since the reason for a prenup is to be sure what will happen with your property & debts, inserting all the uncertainty over whether the prenup might get thrown out by the Court makes no sense. One attorney can’t represent both parties when negotiating the terms of a prenup, because the two parties interests are directly in conflict.
Contains Inappropriate Provisions.
A prenup that contains unusual provisions outside the scope of the distribution of assets and/or spousal support could be successfully challenged in Court. Courts have thrown out prenups that contained guidelines about visits by in-laws, frequency of sexual relations, or limits of acceptable weight gain. While a properly drafted prenup could possibly bargain away numerous unusual matters, a prenup is a contract, and as such the entire body of California contract law will apply, including numerous public policies and legal principles (for example, a contract limiting a persons ability to work is generally disfavored, so a prenup promising that wife will quit her job and devote all her time to husband will need to be carefully drafted). A prenup limiting child support will be presumed invalid, since neither party is allowed to forfeit or restrict a minor child’s right to financial support from a non-custodial parent. Whether having one invalid clause on a prenup will cause the whole thing to be thrown out will usually depend on how well it is all drafted, so it is advisable that you seek a good prenup attorney who knows how to draft anything creative you may want to do.
If you have questions about the validity of your prenuptial agreement, it is best to seek the assistance of a qualified family law attorney in San Jose who can offer advice that is specific to your case.