Most Californians who sign a prenuptial agreement hope – or assume – that the agreement will never need to be enforced. Unfortunately, life is uncertain, and even the happiest of marriages can fail. Moreover, life changes can make some prenuptial agreements appear to be very unfair months or years after wedding vows were exchanged. Can a prenuptial agreement be declared to be invalid? Yes, but not all possible remedies apply to every situation.
Failure to observe formal requirements
According to the California statute that authorizes premarital agreements, the agreement must be in writing and signed before the wedding takes place. Oral prenuptial agreements are not enforceable, and the lack of one signature will invalidate the entire agreement.
Pressure to sign
Both parties must be afforded equal opportunity to read the prenuptial agreement and have it reviewed by an attorney. If one party pressured the other party to sign the agreement without reading it or without obtaining review by an attorney, the agreement is likely to be declared to be invalid. If one prospective spouse hands a draft agreement to the other spouse on the day of the wedding and demands a signature, the agreement is very likely to be declared unenforceable.
Fraud and unconscionability
If one spouse misrepresents or fails to disclose material information about personal assets or liabilities, the agreement can be invalidated. Both parties must make a full disclosure of their personal assets and liabilities before the agreement is signed. The failure or refusal of one party to do so can lead to a court order declaring the agreement to be unenforceable. Also, the insistence by one party on including one or more provisions that are unconscionable (these clauses usually concern asset division and spousal support) can cause the agreement to be declared invalid.
Anyone faced with a possible legal action (including a divorce) to enforce a prenuptial agreement that appears to violate any of the formal or substantive prerequisites may wish to consult an experienced divorce attorney for an evaluation of the evidence and an opinion on the potential outcome of the legal proceeding.