Are Prenups Useless?

Prenups are invaluable tools for managing money and expectations in your marriage, but they require more than a signature to be effective.

Maybe you’ve seen headlines about prenups gone wrong, or maybe you’re a natural skeptic. It’s important to know prenups are not useless, but you should approach yours with care and detail when getting married.

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Prenups: What Can Go Wrong?

Kevin Costner’s recent divorce drama taught us that several matters can go sideways during a divorce trial.

Kevin Costner and his wife, Christine Baumgartner, created a prenuptial agreement in 2004 stipulating that Baumgartner was to vacate the home Costner purchased prior to their marriage, within 30 days of filing for divorce. The prenup also included a payout to Baumgartner in the amount of $1M, in addition to $200K for a deposit on a new home and money for property taxes and homeowners insurance.

So what’s the problem?

Baumgartner refused to vacate within the 30-day timeframe, alleging that Costner was kicking her and their children out of their family home and challenging the validity of the prenup.

What ensued was a monthslong court battle, in which Baumgartner was eventually ordered to move out by the judge. And while she planned to formally challenge the validity of the prenup in court, the divorce was settled once she realized that it would most likely not end well, and could potentially cost her $1M and leave her responsible for Kevin’s legal bills.

In summary: Baumgartner had the ability to challenge the prenup despite signing it according to the agreed upon terms in 2004. And while the agreement held up in this case, it isn’t unprecedented for a judge to invalidate a prenup.

Zucker Case

The 2022 Zucker case set a new precedent for amending spousal support provisions in California.

Before 2002, the California Family Code dictated that spousal support limitations could not be enforced if they were unconscionable when the agreement was executed.

After 2002, the code was updated so that the conscionability of spousal support limitations or waivers would be measured at the time of enforcement (during separation or divorce).

When Mr. & Mrs. Zucker filed for divorce, their 1994 prenup granted Mrs. Zucker a monthly payment of $6,000. The thing is, Mrs. Zucker spent the entirety of the marriage unemployed and raising their six children. Meanwhile, Mr. Zucker had grown his net worth to $32M.

Given their latest financial circumstances, you might not find it surprising that Mrs. Zucker challenged the validity of the spousal support provision of $6,000. Even though they signed the prenup under the pre-2002 guidelines, the court ultimately ruled in favor of Mrs. Zucker, recognizing it would be virtually impossible for her to maintain the marital standard of living with the $6,000 of spousal support initially agreed upon, and ordered Mr. Zucker to pay a much higher amount of spousal support

The takeaway? The court can overrule spousal support provisions in your prenup if it deems them to be grossly unreasonable.

If this has you questioning the purpose of a prenup, consider this:

• A court will only invalidate a prenup under specific circumstances (detailed below)
• When done collaboratively, a prenup aims to meet the needs of both parties and leave everyone feeling good about the agreement from the outset
• There are effective ways to structure your prenup to decrease liability in the event of a divorce

Let’s explore how prenuptial agreements work in divorce and under what circumstances the court may void one.

Prenups & Divorce: How It Goes Down

A prenuptial agreement isn’t valid until the court deems it valid through the bifurcation process, and making all of the necessary findings below pursuant to Family Code section 1615, or if you and your partner agree that the prenup is valid.

When you file for divorce with a prenuptial agreement, your attorney at that time will request that the court schedule a secondary trial to review your prenup and determine its validity, or that your partner simply agree to its validity.

If the prenup was prepared according to the law, and the Court does not believe that any of the provisions conflict with public policy or the law, it will confirm the validity of the prenup. But if something looks fishy, or one of the parties challenges multiple terms of the prenup, the court will look deeper to determine if the agreement should be held to be valid.

Factors That May Invalidate Your CA Prenup

In California, the court uses Family Code section 1615 during the divorce process to determine whether or not your prenuptial agreement is valid.

Family Code section 1615 considers the invalidation of a prenup in these key ways:

A prenuptial agreement may not be enforceable if one of the parties can prove the following:

1. They didn’t sign the agreement voluntarily or
2. The agreement was unconscionable, meaning the terms of the agreement were unreasonable, or one spouse lied to the other about terms affecting the agreement, like failing to properly and accurately disclose certain financial assets

To determine if the prenup was signed voluntarily, the court must find in writing or record ALL of the following:

1. The party against whom enforcement is sought was represented by independent legal counsel at the time of signing or waived representation by independent legal counsel
2. The parties and their attorneys followed the 7-day rule
3. The party against whom enforcement is sought, if not represented by legal counsel, was made fully aware of the terms and obligations of the agreement and was proficient in the language the agreement was written in
4. The agreement was not executed under duress, fraud, or undue influence
5. Any other factors the court deems relevant

It may sound like a lot of legal jargon, but the solution is simple:

1. Do not sign or make your future spouse sign your prenuptial agreement under any form of coercion
2. Only include clauses that are necessary and reasonable
3. Consult with a family law attorney from the outset to ensure you’re following the legal process carefully and correctly
4. Maintain an open line of communication with your partner throughout the entire prenup process to make sure both your wants and needs are met
5. Document everything

The key to any successful prenuptial agreement is transparency. This establishes trust in your relationship and safeguards you from a potentially life-altering court decision.

In simple terms: don’t lie, and don’t make anyone sign something they don’t want to or don’t understand.

The Bottom Line: Prenups Are Powerful Legal Documents

While it’s true that anything can happen in a divorce, an invalidated prenuptial agreement doesn’t have to be one of them.

Yes, prenups (or specific clauses in the prenup) may become invalid in certain scenarios. But most of these can be countered by approaching the process collaboratively with your partner and engaging with a family law attorney for specialized guidance.

Follow these basic steps, and crafting your prenup will be an empowering part of your engagement and long-term marriage.

If getting a prenup is on your end-of-year checklist, don’t hesitate to reach out for a consultation call. My goal is to help as many people enter thriving, successful marriages with compassionate and clear legal support.