Let Our Orange County Divorce Lawyers Help You Challenge the Terms of Your Prenup

As a general rule, prenuptial agreements are enforceable in California. However, there are exceptions, and spouses in high-net-worth couples who find themselves facing unfavorable consequences due to the terms of a prenup should discuss their options with an experienced attorney.

At Seastrom Tuttle Murphy Dockstader, our Orange County high-net-worth divorce lawyers have extensive experience representing spouses in divorces involving prenuptial agreements. We have fought to enforce our clients’ prenups, and we have fought to protect our clients against unfair, unconscionable and illegal contract terms. If you have questions or concerns, we encourage you to contact us promptly, and one of our Irvine divorce attorneys will be happy to meet with you in confidence to evaluate your prenuptial agreement’s enforceability.

Commonly Enforced Prenup Terms

The purpose of a prenup is to clarify the financial rights of each party and the division of property upon the dissolution of the marriage. As such, the terms of most prenups generally are restricted to financial matters. Some of the most common provisions in prenups concern:

• Identification of each party’s assets
• Definitions of separate property and community property
• Management of marital bills, expenses, and debts
• Payment of educational expenses
• Alimony/Spousal Support payments
• Mediation or arbitration requirements

Regardless of the terms in a particular prenup, the guiding principle is that the prenup should concern primarily financial matters and be entered into in good faith and with full disclosure.

5 Grounds to Challenge a Prenuptial Agreement in California

Under California law, there are various issues that can render a prenuptial agreement unenforceable. While some of these issues can render a prenup unenforceable in its entirety, others will prevent the enforcement of a specific provision under an otherwise enforceable agreement:

1. Execution Under Duress, Manipulation or Fraud

In order to be legally enforceable, a prenuptial agreement must be entered into voluntarily by both parties. If either party signed the agreement against his or her will due to duress, manipulation or fraud, then the entire agreement may be invalid.

2. Unconscionability

A prenuptial agreement can also be invalid if it is determined to be “unconscionable.” In order to be considered unconscionable, a prenuptial agreement must be overtly one-sided, and the spouse seeking to challenge the agreement must have not:

• Received full disclosure of his or her fiancé’s assets and liabilities prior to signing the agreement;
• Waived his or her right to receive a full and accurate asset and liability disclosure; and,
• Had a reasonable opportunity to discover his or her fiancé’s assets and liabilities prior to signing.

3. Lack of Mental Capacity

A prenuptial agreement is not enforceable if, at the time of signing, one party lacked the mental capacity required to make an informed and conscious decision. In addition to mental illnesses and other health conditions, alcohol and drug intoxication can establish lack of capacity in some cases.

4. Lack of Legal Representation

By law, when signing a prenuptial agreement in California, both parties must have their attorneys present, or they must have previously waived their right to legal representation in a separate document. If either party was denied the opportunity to have legal representation, this can render their prenuptial agreement unenforceable.

5. Illegal Terms

California law also prohibits prenuptial agreements from containing certain terms. For example, waivers of child support and child custody rights generally will not be enforced. Likewise, contract terms that are viewed as “promoting” divorce may be deemed unenforceable as well.

Schedule a Confidential Initial Divorce Consultation in at Our Irvine Office

Are you preparing for a divorce and wondering if your prenup is legally enforceable? If so, one of our Irvine high-net-worth divorce attorneys would be happy to help. To get started with a confidential initial consultation with an Irvine divorce lawyer, call us at 949-474-0800 or request an appointment online today. 

Common Questions About Challenging a Premarital Agreement in Orange County

On what grounds can a premarital agreement be set aside in California?

The most common attacks are that the agreement was not executed voluntarily, and that specific statutory formalities were not met. California law treats an agreement as involuntary unless the party challenging it was represented by independent counsel or waived that right in a separate writing, was given at least seven calendar days between first receiving the agreement and signing it, and, if unrepresented, was fully informed in writing of the terms and the rights being given up. Agreements are also attacked for inadequate disclosure of assets and income, and for provisions that are unconscionable. Failure on any one of those points can be enough.

Does a spousal support waiver in a premarital agreement hold up?

It is enforceable only under conditions narrower than the rest of the agreement. A provision waiving or limiting spousal support is not enforceable against a party who was not represented by independent counsel when the agreement was signed, and even with counsel it is unenforceable if the court finds it unconscionable at the time enforcement is sought. That second point matters, because it measures the provision against circumstances at the divorce rather than at signing, so a waiver that looked reasonable years ago can fail after a long marriage or a change in health or earning capacity.

Is a premarital agreement invalid if assets were not fully disclosed?

Not automatically, but inadequate disclosure is a substantial ground for challenge, and it interacts with the other grounds. The statute requires that a party have fair, reasonable, and full disclosure of the other party’s property and financial obligations, or have voluntarily and expressly waived that disclosure in writing. Where the disclosure was a bare list without values, omitted entities or accounts, or substantially understated a business, the challenge becomes considerably stronger, particularly when combined with a short interval before signing or the absence of independent counsel.

How much of an agreement falls if part of it is invalid?

It depends on the defect and on the agreement’s own terms. Where a specific provision is unenforceable, such as a support waiver signed without counsel, a court may strike that provision and enforce the remainder, especially if the agreement contains a severability clause. Where the defect goes to the execution itself, an involuntary signing or a failure of the presentment requirements, the entire agreement is at risk. That is why the challenge should be framed to the actual defect, since a targeted attack on one provision and a global attack on the agreement call for different proof and produce very different outcomes.

About the Firm

Seastrom Tuttle Murphy Dockstader is a family law firm in Irvine representing clients throughout Orange County, and in Los Angeles County. The firm practices family law exclusively. Its attorneys include Fellows of the American Academy of Matrimonial Lawyers and of the International Academy of Family Lawyers, and attorneys certified as specialists in family law by the State Bar of California Board of Legal Specialization. Call 949.474.0800 to discuss the enforceability of a premarital agreement with the firm.