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San Jose Divorce Lawyers Blog

Is My Prenup Valid?

Prenuptial agreements are becoming increasingly common, but couples considering a San Jose divorce should be aware that these agreements aren’t always legally binding.

A prenuptial agreement should be in writing in order to be legally enforceable. An alleged oral contract will be very hard (almost impossible) to prove in a San Jose divorce court.

Informed consent is crucial to make a prenuptial agreement enforceable. If one of the parties was pressured to sign, the agreement may not be valid. This point is not absolute, however, since merely being unhappy with the terms of the written agreement does not mean the signer was under duress. Being under the influence of drugs or alcohol at the time the agreement is signed, or not being given enough time to adequately read the premarital agreement may also be reasons why it would be considered invalid in a divorce settlement.

A prenup that is found to contain false, incomplete, or deliberately misleading information is likely to be found invalid during your divorce. Actual lying and/or misleading information could be found to be fraud, which is a strong basis to set aside the prenup, if proven. You should talk with your San Jose divorce lawyer about what facts and details to include in your prenup.

Both parties need to have independent legal representation before signing a prenup. If they have the same attorney, a conflict of interest arises. If they prepare the prenup without the help of counsel it may not meet the legal formalities required and be of no effect. These points become especially important when there is a significant difference in the earnings and assets of one partner or if one person lacks the intellectual capacity to full understand his or her legal rights.

Prenuptial agreements can’t invalidate provisions of the law. For example, a prenuptial agreement can’t specify that one party would not have to pay child support if the couple decided to divorce. However, the courts can choose to simply strike the illegal portions of the agreement and enforce any of the other provision if there are no additional problems with the prenup.

Prenups can be legal even if they divide marital assets in a way that favors one spouse over the other. But a prenup could be set aside if the court considers the discrepancy to be grossly unfair. A contract is “unconscionable” if it means that one of the parties would face extreme financial hardship while the other prospers. “Unconscionable” contracts will not be enfoprced by the courts.

If you’ve signed a prenup and want to know if it will be considered valid during your divorce, this is an issue you’ll need to bring up at your initial consultation with your San Jose divorce lawyer. You should choose legal representation with experience in this specific area of divorce law in order to make sure you have the best chance of gaining a fair settlement.

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    April 4, 2012 at 6:24 pm

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