Prenuptial & Postnuptial Agreements: How to Protect Your Assets and Avoid Legal Pitfalls

Prenuptial and postnuptial agreements can serve as critical legal tools for protecting assets in a marriage. But if not drafted properly, they can be vulnerable to legal challenges down the road. Understanding how these agreements are structured—and what can cause them to be invalidated—is key to ensuring they hold up in court.

“A prenup is what you enter into before you get married. A postnup is when you’ve been married for a while and decide that you want an arrangement as to what should happen if you ever separate.”

What Courts Look for in a Prenuptial or Postnuptial Agreement

California law allows for both prenuptial agreements (signed before marriage) and postnuptial agreements (signed after marriage). However, not all agreements are enforceable. Courts assess whether an agreement is fair and legally sound when reviewing it during divorce proceedings.

Here are some key factors that determine validity:

• Fairness at the Time of Signing – If an agreement appears extremely one-sided or inequitable, it could be challenged as “unconscionable” under California law.
• Sufficient Time for Review – If one spouse is pressured to sign a prenup at the last minute, they may later claim duress and seek to invalidate the agreement.
• Independent Legal Counsel – Courts favor agreements where both parties had separate attorneys reviewing the terms before signing.
• Full Financial Disclosure – Hiding assets or failing to disclose financial holdings can lead to the agreement being overturned.

“People spend months planning their weddings, but they often race last minute to sign a prenuptial agreement. That’s a big mistake.”

Common Mistakes That Can Invalidate a Prenuptial or Postnuptial Agreement

Even with good intentions, certain errors can weaken the enforceability of a prenuptial or postnuptial agreement. Here are common mistakes to avoid:

1. Forcing a Last-Minute Signing
   • California law requires at least seven days between when a final prenuptial agreement is presented and when it is signed.
   • Agreements signed under pressure right before a wedding may be challenged as invalid due to duress.
2. Lack of Independent Legal Counsel
   • While parties can waive the right to an attorney, it is highly advisable for both sides to have independent legal review.
   • Paying for the other party to have their own attorney can be a smart investment in ensuring the agreement stands up in court.
3. Failure to Fully Disclose Assets
   • Courts may set aside an agreement if one party fails to disclose all assets and liabilities.
   • A financial ledger listing all real estate, investments, and accounts should be attached to the agreement.

“You want to have attached to it a ledger listing all of your holdings, so no one can later claim they didn’t know about assets when they signed.”

Questions to Ask Your Attorney

If you are considering a prenuptial or postnuptial agreement, here are some key questions to discuss with your attorney:

• What assets should be included in the agreement?
• How can I ensure the agreement is fair and enforceable?
• What steps can I take to avoid challenges to the agreement later on?
• How does California law treat different types of assets in a prenup?

Work With a Certified Family Law Specialist

A well-drafted prenuptial or postnuptial agreement provides clarity and protection, but only if it holds up in court. A Certified Family Law Specialist can help you create an agreement that safeguards your assets while complying with California law.

At Buncher Law Corporation, we help clients craft legally sound, enforceable agreements that stand the test of time. Contact us today to schedule a consultation and protect your financial future.