Enforce Your Prenuptial Agreement Your Divorce: What to Do

Divorce can be one of the most challenging experiences in a person’s life, involving not just the unraveling of a personal partnership but also the untangling of complex financial ties. In California, a state known for its specific and often complex marital property laws, a prenuptial agreement can serve as a critical tool in protecting assets and clarifying intentions should the marriage dissolve. 

However, merely having a prenuptial agreement does not guarantee its enforceability. Let’s walk through the essential steps and considerations to enforce a prenuptial agreement during your divorce in California, ensuring that the values and stipulations you and your partner agreed upon are honored.

What Are Prenuptial Agreements?

Prenuptial agreements, or “prenups,” are contracts entered into by couples before they marry, detailing how assets and finances will be divided in the event of divorce or death. California, being a community property state, typically dictates that any assets acquired during the marriage are to be divided equally upon divorce. However, a well-crafted prenuptial contract can alter this default arrangement, allowing couples to predetermine the division of assets according to their preferences.

Enforceability of Prenuptial Agreements

The enforceability of prenuptial agreements in California is governed by the Uniform Premarital Agreement Act (UPAA). Under this law, the following conditions must be met, or the agreement may be considered unenforceable in part or whole:

• Voluntary Execution: The contract must be entered into voluntarily by both parties. This means that there should be no evidence of coercion, duress, or undue pressure on either party to sign the agreement. Both individuals should fully understand the terms and implications of the contract before signing.
• Full and Fair Disclosure: There must be a full and fair disclosure of all financial assets and obligations by both parties before signing the prenup. The idea is to ensure that both parties make informed decisions regarding the contract. Failure to disclose significant assets or liabilities can render the contract unenforceable.
• Legal Representation: While not mandatory, it is strongly advised that both parties have independent legal representation during the drafting and signing of the prenuptial agreement. This helps ensure that both parties fully understand their rights and the terms of the agreement. In some instances, the absence of independent legal advice can be a factor in challenging the enforceability of the contract.
• Conscionability: The agreement must be conscionable at the time of enforcement. This means it should not be excessively unfair or one-sided to the extent that it would cause undue hardship to one party. If the terms of the prenup are found to be unconscionable at the time of divorce, it may not be enforced.
• Proper Execution: The contract must be in writing and signed by both parties. Oral prenuptial agreements are not enforceable under California law. Additionally, the contract should be executed well in advance of the wedding to avoid claims of duress or rush decisions; a guideline is to have it signed at least seven days before the marriage, though this is not a strict legal requirement.
• No Violation of Public Policy or Law: The terms of the prenup cannot violate public policy or any laws. For example, provisions that adversely affect child support obligations are not enforceable.
• Understanding of the Contract: Both parties must have a comprehensive understanding of the agreement’s terms and the rights they are relinquishing or gaining. This includes an understanding of the legal implications of the contract.

When these criteria are met, a prenuptial agreement stands a strong chance of being enforceable in a California court. However, the specifics of each situation can vary, and challenges to enforceability can still arise. It’s crucial for individuals considering a prenuptial contract in California to consult with legal professionals who specialize in family law to ensure that their agreement is valid, fair, and enforceable.

6 Steps to Enforce a Prenuptial Agreement

If you decide to pursue a divorce, having a valid prenup is just the first step. To ensure it provides the legal and financial protections as intended when it was written, you must also enforce it. These six steps can help you enforce your prenup effectively:

1. Review the Contract for Compliance: The first step in enforcing a prenuptial agreement is to ensure that it complies with California’s legal requirements. This includes reviewing the document for voluntariness, full disclosure, and fairness at the time of signing.
2. Prepare Documentation: Gather all relevant financial documents and evidence that support the terms of the prenup. These documents may include asset valuations, financial statements, and any communications regarding the contract.
3. Seek Legal Advice: Consulting with an attorney who specializes in family law in California is crucial. They can guide you through the enforceability of your contract and represent your interests throughout the divorce proceedings.
4. File a Motion: If your spouse challenges the prenuptial contract, you may need to file a motion with the court to enforce the agreement. Your attorney can assist with drafting and submitting the necessary legal documents.
5. Defend Your Agreement’s Value: To protect your prenup from challenges, your attorney will help you demonstrate that it meets the conditions necessary for enforceability, including full disclosure, voluntariness, transparency, and conscionability. 
6. Negotiate with Your Spouse: In many cases, reaching an agreement outside of court is preferable. Negotiation or mediation can be effective ways to uphold the terms of your prenuptial contract while minimizing conflict and legal expenses.

Enforcing a prenuptial contract in California requires careful preparation, a solid understanding of state laws, and strategic legal representation. By ensuring your contract meets all legal criteria, preparing thoroughly, and seeking expert advice, you can protect your assets and intentions during the divorce process. Remember, the goal of a prenuptial agreement is not just to safeguard individual interests but to provide clarity and fairness for both parties during a challenging time.

At Kaspar & Lugay, LLP, we understand how important your prenup is to your financial future. We’re prepared to help you draft, review, or enforce your prenuptial agreement and protect yourself during big life changes. Schedule your consultation with our experienced prenuptial agreement lawyers to learn how we can assist you with the challenges of enforcing prenups in California.