If you are contemplating divorce, you may have questions about how your prenuptial agreement can affect the process. In addition to perusing an overview of common issues that tend to come up, having an attorney review your document can give you the advice you need in your specific circumstances.
Generally, California courts tend to uphold valid prenuptial agreements. If an otherwise valid agreement contains an invalid clause, the prevailing approach is to discard that clause and enforce the rest of the prenup.
Writing and signature
To be valid, a prenup must be in writing, and both parties must sign it. In addition, both parties must have independent legal representation to help each of them understand the proposed agreement and its consequences. Alternatively, a party may choose to waive the right to counsel in a separate written document that states he or she is fully aware of the potential consequences of lacking legal representation and that he or she knowingly waives it.
Another important condition for a prenup’s validity is that both parties fully disclose their finances to one another. As with other types of contracts, concealing or misrepresenting a material fact can cause the agreement to be invalid. In such a situation, a material fact is one that a party knows or should know will influence the other’s decision to accept or refuse the contract. A party who does not fully understand the contract in English is entitled to have a translation in his or her primary language.
Courts may also refuse to enforce an unconscionable prenup. Unconscionability can be hard to define precisely but can happen when a grave imbalance of bargaining power leads to a highly unfair agreement. Generally, courts tend to devote a higher degree of scrutiny when the agreement’s terms disproportionately favor one party over the other, as such terms are less likely to be acceptable to a party with more or less equal bargaining power.