Premarital agreements in California may become unenforceable. Here’s how Family Code 1615 can invalidate premarital agreements in California.
Premarital agreements are irreversible in California unless Family Code Section 1615 applies to one of the prospective spouses. The party arguing to nullify the premarital agreement must legally prove involuntarily agreement to the prenup or full disclosure of assets and debts of the other spouse. In the case of a couple of divorces, a prenup will determine how assets and debts are distributed between parties. Premarital contracts occur before marriage to declare rights and obligations, forcing conversations about financial burdens and goals.
Defining a Legally Voluntary Premarital Agreement
For a prenup to be deemed voluntary by a judge, both spouses must meet certain criteria before signing the document. The agreement must be written and explained in a language both parties can understand. A full seven calendar days must be allotted to each spouse to seek legal counsel. At the time of signing the prenup, both parties cannot be under the influence, experiencing distress, being persuaded, or executing fraud.
Coercion may automatically result in a judge declaring a prenup involuntary, and other extenuating circumstances may be relevant. Surprise presentation of the agreement, unannounced presence of independent counsel, unawareness of the prenup’s intent, or inequality of interest and power may all be grounds to invalidate a premarital agreement.
A divorce judge needs writing or a recording of all previous legal conditions that were met while executing the prenup. Violation of the criteria may result in a legally unenforceable premarital agreement.
Determining If Assets and Debts Were Disclosed to Both Parties
A valid premarital agreement must be conscionable while drafting and signing. Conscionable characteristics necessary from both parties may include, but are not limited to:
- full disclosure of property and finances,
- assets and debts not intentionally waived,
- limited knowledge of financial obligations,
- legally considered fair and equitable.
Including dates of when the prenup was drafted and finalized, and a detailed list of assets and debts may result in a judge is more likely to enforce a marital agreement. A timeline and description of finances may preclude any dispute of a party claiming to be unaware of property and finances.
Related: What to Include in a California Prenuptial Agreement
Legal Counsel for Both Parties in a Premarital Agreement
Both parties should consider obtaining legal representation for a premarital agreement in California. A premarital agreement may be obtained without counsel only if after being advised to seek representation, the party refuses. A legal waiver needs a consensual signature by the party openly denying counsel.
How to Ensure an Enforceable Prenup
Following the criteria to ensure an enforceable prenup may seem tedious and time-consuming, but attention to detail will prove invaluable legally. Due to California’s seven calendar day requirement, couples may not want to wait until the last minute to decide whether to get a premarital agreement.
Counsel is highly recommended but not required to protect the validity of a prenup. Legal representation ensures premarital agreements are fully explained and an outside party can testify to consensual signing. Couples should disclose all debt and assets. Being open and honest about finances and property will enable a judge to uphold the agreement if a divorce is filed.
Related: How to Enforce a Prenuptial Agreement in California
FAQs about Unenforceable Premarital Agreements and Family Code Section 1615 in California
1. Who needs a premarital agreement?
Prenups are recommended for all couples but may be costly. Thus, it may be in one’s best interest to acquire a premarital agreement if they own assets from a previous marriage, are business owners, or are very wealthy individuals.
2. What can California premarital agreements not include?
Premarital agreements must not involve public policy issues (problems that concern the future). For example, a future child’s rights and eventual custody terms cannot be determined in a prenup.
Related: How to Get a Prenup in California: Prenuptial Agreements
3. What if my spouse does not want a premarital agreement, but I do?
A prenup must be signed by both parties. However, what a person owns prior to a California divorce will likely separate property. Without a prenup, spousal support is determined by income levels of each party and current marital standard of living.
4. Is a witness needed for a prenup signing in California?
While a witness or judge being present may help prove the validity of a premarital agreement, a third-party witness does not need to be present when both prospective spouses sign the document. Signing the prenup in a California court may prevent one of the parties from later claiming coercion.
Contact Us
If your or a loved one would like to know more about pre-marital agreements in California, get your free consultation with one of our family law attorneys today!