In California, a prenuptial agreement can be voided depending on several factors, including improper timing, coercion, and mishandled procedures.
Each state has its legalities regarding prenuptial agreements. California follows Family Code 1615, which governs the handling and enforceability of prenups. Let’s unpack this code into easy-to-understand terms, so you are clear on what keeps a prenup from being voided.
What is a Prenup?
With a prenuptial agreement, couples enter into a contract to establish specific obligations during marriage and in the event that the marriage ends in divorce.
A prenup primarily helps you and your spouse tailor how your individual and community property, assets, and debts are handled during marriage, and in case of a divorce or death. Plus, prenups can cover a variety of other issues like pet custody and privacy guidelines by adding clauses to the agreement.
Factors that Void Prenups in California
While prenuptial agreements define responsibilities and obligations should the marriage end, the following factors can render them unenforceable in California courts.
Timing: Breaking the “7-Day Rule”
You must factor in California’s “7-Day Rule” when signing a prenup. California requires that the agreement is in writing and in its final form at least seven calendar days before signing. In addition, make sure to factor in travel plans for out-of-state ceremonies, back-and-forth edits on clauses, and other potential delays.
In other words, don’t wait until the last minute and try to work in a prenuptial agreement a few days before the wedding. If you don’t adhere to the 7-Day Rule, your prenup is not valid.
Signing Under Duress
The prenuptial agreement is only valid if it is signed willingly by both parties.
If either spouse can prove that they were physically forced or emotionally manipulated to sign the prenup, the agreement may be considered null and void. An example of coercion is if one spouse threatens to cancel the wedding ceremony unless the other signs the prenup.
Agreeing Under False Promises
A prenup can be overturned if it is signed under false pretenses or failing to make full and accurate financial disclosures.
For example, if your spouse convinces you to sign the agreement by making false promises about their marital status or finances, the agreement may not be valid.
Additionally, the resulting agreement may be void if one spouse hides their assets, income, or debts during the negotiation process.
In short, it’s important to be honest with your future spouse when discussing a prenuptial agreement. Otherwise, you may end up nullifying the agreement entirely.
Procedures: Skipping an Attorney Review
In California, reasonable and reliable representation is required during the signing of a prenup unless one party waives the right to an attorney review in a separate writing. The state mandates that each spouse retain an attorney to review the contract before it is signed to ensure legality and fairness.
More importantly, if the agreement includes spousal support waivers or limitations, California law requires that each party is represented by their own attorney. In this situation, neither party is allowed to waive the right to have an attorney review it prior to signing.
The prenup is essentially invalid if you don’t follow the very specific procedures required by the law.
If the Court determines that the terms of a prenuptial agreement are “unconscionable” or grossly unfair, the entire contract could be voided. An unconscionable prenuptial agreement will have terms that are so one-sided, that a Court may wonder under what circumstances a party signed it. In the eyes of the law, unconscionable terms are those that “shock the conscience”.
For example, if the prenup states that one party keeps all the assets acquired before and during their marriage and the other party receives nothing in return, the Court may not enforce at the time of divorce.
Additionally, the conscionability of any spousal support waivers and/or limitations will be measured at the time of enforcement (divorce).
Using a Verbal Agreement
Simply put, the prenuptial agreement must be in writing. Verbal agreements are not enforceable.
Can a Prenup Be Voided After Death?
Yes, your prenup can be voided after you or your spouse passes away for the same reasons listed above. The estate of the deceased party or the surviving spouse may bring an action in Court to invalidate the agreement.
However, it isn’t automatically voided because of the death itself. Generally speaking, if the prenup is valid, then the California court will use it for general guidance on the division of property (along with more detailed guidance from your Will & Trust).
Next Steps: Talk To Your Partner
Review this blog post with your partner as soon as you two are getting serious in your relationship. Prenups are powerful tools for empowering a marriage, but they should be carefully crafted and drafted with the help of an experienced prenup attorney.
Use this guide to talk through money and other pillars in your life. Lastly, embrace this opportunity to have deep, meaningful conversations with your partner and set yourself up for a long-term, successful marriage.