Focusing On Family Law – And You
In California, it is common for people to try and protect themselves before and even during a marriage with a premarital or a post-marital agreement (also referred to a prenuptial and postnuptial agreements). Since the state template is based on community property and the couple will generally split anything that was acquired after the marriage, it might be a wise step to consider these documents.
Still, having the document signed does not mean that it will be a smooth process if the marriage does not work out. In some instances, a person who had more property before the marriage is accused of wrongdoing in compelling the person who had less to sign. One reason that might be used to nullify the agreement is by claiming it was not signed voluntarily. For the agreement to hold up, it is important to understand the law.
The validity of the premarital agreement is key
Signing voluntarily is a primary tenet for the premarital agreement to be considered valid. If it was not voluntary, then it will not be enforceable when the parties decide to divorce. The court will assess the circumstances surrounding the agreement to decide it if was voluntary.
For it to be nullified, the court will need to see that the person who is fighting enforcement had independent legal representation when they signed it or were advised to seek such representation and declined to do so in writing. This must have been done a minimum of seven days before signing.
The date when it was signed is also critical. If it was agreed to and executed between Jan. 1, 2002 and Jan. 1, 2020, the person who is facing enforcement of the agreement must have had at least seven days from when they were presented with the agreement and told they should seek independent legal counsel before signing.
If it was executed after Jan. 1, 2020, the person confronted by enforcement of the agreement must have had seven days from being presented the agreement and when it was signed. It does not matter if they were advised to seek legal counsel.
Premarital agreements in a divorce can be complicated
Even if the sides signed the premarital agreement willingly and had no issue with doing so, that does not mean dispute will be completely avoided when they divorce. A person who does not want to have the agreement upheld might make a variety of claims including the lack of independent counsel and not having signed voluntarily.