Most divorce attorneys in the Livermore area and elsewhere in California recommend that persons with significant assets, or who are about to marry a person with significant assets, sign a prenuptial agreement that prescribes how their assets will be divided in case of a divorce. Occasionally, the decision to sign a prenuptial agreement can result in a manifestly unfair division of assets or deprive one spouse of necessary financial resources. In such cases, one spouse may wish to have the prenuptial agreement, or at least one or more specific provisions of the agreement, invalidated. How can that be accomplished?
Failure to follow formalities
The easiest way to invalidate a prenuptial agreement is to show that the formalities were not followed. These formalities include:
- The agreement must be in writing, and
- Both parties must sign the agreement before the wedding takes place
If either of these formalities have been omitted, the agreement is void and unenforceable.
Unconscionability
A party against whom enforce of the agreement is sought can prove one or more of the following:
- That party did not execute the agreement voluntarily
- The agreement was inequitable before it was signed
- The party can prove that the other party did not make a fair, reasonable and full disclosure of his or her property
- The party can prove that he or she was deprived of the opportunity to retain a competent attorney to review the agreement
For agreements executed between January 1, 2002 and January 1, 2020, the party against whom enforcement is sought had less than seven calendar days after receiving the final draft of the agreement to seek legal counsel. For agreements signed after January 1, 2020, the party against whom enforcement is sought was given less than seven days.
As might be supposed, invalidating a premarital agreement is not an easy chore. Anyone who is facing a divorce and wishes to defeat enforcement of a prenuptial agreement may wish to seek advice from an experienced divorce attorney for advice on the likelihood of prevailing in a challenge to the agreement.