Using a written contract to settle issues of asset division and other questions that arise in a divorce has become increasingly common over the last three decades in California. These agreements, usually called prenuptial agreements or prenups, can be used to divide assets, settle issues of child custody and support and resolve similar questions that might arise if the couple decides to get divorced. Most individuals sign a prenup in the belief that the agreement will be enforced according to its terms in the event of divorce. But some individuals who have signed a prenup may decide to pursue a divorce and then discover that the terms of the prenup are grossly unfair. What can be done? The answer is “plenty.”

Formal flaws lead to invalidation

In California, a prenuptial agreement must first satisfy the formal requirements of the statute. The agreement must be in writing, must have been signed by both parties before – repeat, before – the wedding. Both parties must be given 7 days to review the final draft of the agreement after receiving a complete financial disclosure from the other spouse, and each spouse must be represented by an attorney.

If any of these requirements are not met, the agreement will most likely be declared to be unenforceable.

Substantive flaws also lead to invalidation

A spouse can obtain a court order invalidating a prenuptial agreement if he or she can prove that the agreement is unfair or that the other spouse hid or misrepresented financial information before the agreement was signed. A wealthy spouse can lay the seeds for having a prenup declared to be unenforceable by hiding assets in a foreign country or otherwise misrepresenting a financial situation. An agreement can be declared to be unenforceable if one party entered into the agreement without a full understanding of its terms or if the agreement turns out to be unfair or one sided.

No one should begin an attack on a prenup without consulting an experienced divorce attorney. A knowledgeable divorce lawyer can evaluate the enforceability of the agreement and provide an opinion on the relative ease or difficulty of obtaining a court order invalidating the agreement.