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Prenuptial agreements in California

| May 17, 2018 | Firm News

If a couple is thinking about divorce, the prenuptial agreement is one among several factors that could have a significant effect. A valid prenup can supersede other considerations when it comes to matters such as spousal support or property division.

Sometimes, a spouse may want to challenge the validity of a prenup or of a particular provision.

Requirements for validity

California law has several requirements a prenup must meet in order to stand up in court. Generally, a prenup must be in writing and both parties must sign it.

Voluntary signing

Both parties must enter into the agreement voluntarily. This usually means having a lawyer review it before signing. A party can waive the right to have an attorney look over the agreement; the waiver must be in writing. If one party waives the right to a lawyer, he or she must receive an explanation of the agreement in writing and acknowledge the receipt of the explanations in writing as well.

The law also requires there to be enough time for a person to read through the agreement or have an attorney review it. Thus, there must be at least seven days between the production of the prenup and the parties’ signatures.

The parties must not sign based on fraud or duress. Fraud generally means one party misrepresented a relevant fact in a way that influenced the other party’s decision. For example, failing to disclose assets can be fraudulent in this context.

Topics that may be covered

A prenup can cover a variety of topics. The couple may agree to divide certain property or allocate support in a way that a court, using the standard decision-making process, would not. However, a California prenup may not deal with child support, as that is in the best interest of the child, not the parents signing the prenup. Like other types of agreements, the prenup may also not contain provisions that violate public policy or criminal statutes.