Pre-Marital & Post-Marital Agreements

Enforcing and Disputing

In California, the validity of prenuptial and postnuptial agreements are recognized by the courts. If one exists, it will most likely play a role in the handling of your divorce. Many factors can render certain clauses in these agreements unenforceable. Prior to being concerned with specific details of an agreement, such as division of property, custody or support issues, it is important to understand whether the agreement in whole or part is enforceable.

What makes an agreement enforceable?

In California there are three issues in particular that validate a prenuptial or postnuptial agreement:

1. Was the agreement signed by either spouse under duress or was either spouse coerced into signing it?
2. Was the agreement grossly unfair to either spouse at the time it was signed?
3. Did both spouses have legal representation when they signed the agreement or did one spouse lack sufficient knowledge of the legal implications of what they were signing?

While none of these issues will automatically void a prenuptial or postnuptial agreement, if one party can raise a legitimate question as to the enforceability of the agreement, it can drastically affect the course of a divorce.

Are there certain clauses in the agreement that may be unenforceable?

While as a whole, an agreement is enforceable, it is possible that certain provisions or clauses will be disregarded. For example, California Family Law Code does not permit fiancés or spouses to enter into agreements that:

• Waive one party’s right to child support.
• Predetermine child custody and visitation rights.
• Involve nonpayment of alimony where the would-be recipient will be left nearly destitute or did not understand that they were waiving this right.

How will the enforceable terms of your agreement affect your divorce?

It is important to speak to an attorney to understand how a prenuptial or postnuptial agreement will impact a divorce strategy. Understanding the enforceable areas of an agreement as they relate to issues such as alimony, business ownership and management, division of debts, division of separate and community property, or who gets to keep the marital home, may determine which strategy to use in resolving the divorce.

Our strategy is to review the agreement together and devise a plan to proceed based on each client’s legal goals. For information regarding how your prenuptial or postnuptial agreement will affect your divorce, we invite you to contact us for a confidential consultation.

Please note that at Buncher Family Law we do not draft prenuptial and postnuptial agreements. If you would like a professional referral to an attorney who drafts these agreements we are happy to do so.