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Can you challenge a prenup?

by Dinnebier & Demmerle on September 25, 2014

prenupCan your challenge a prenup? In a recent blog post we took a brief look at prenuptial agreements and how they can figure in the divorce process. Now we will switch sides and address whether and how these agreements can be overturned.

When one or both spouses in a divorce situation has a high net worth, or substantial inheritances or income are present or expected, challenges to a prenup may be common. Of course, California law regarding separate and community property and inheritances take precedence. But a spouse may not wish to honor a prenup that was executed in a more congenial time, under happier circumstances.

The California Family Law Code and California Uniform Premarital Agreement Act specify the requirements for a valid prenuptial agreement. Here is a brief and condensed summary:

Agreement must be in writing. Verbal agreements are not valid. The rise of social media-placed prenup statements will no doubt be addressed in future amendments to California law; however at present these types of promises made online do not figure in our discussion.

  • Both parties must each be represented by a different attorney or waive legal representation in writing.
  • A period of at least seven days must pass between the presentation and signing of the prenuptial agreement.
  • Agreement must include full financial disclosure
  • Agreement must not be signed under duress or coercion
  • Conditions specified in the agreement may not be “unconscionable” – that is to say, punitive, unreasonable, or involving illegal actions
  • Agreements may enumerate financial issues. However, prenups may not detail matters relating to children (including custody and child support), nor can a prenup go into such things as sexual relations and consequences resulting from them, such as adultery.

Spousal support may be addressed in a prenup, but this topic is one of the most commonly challenged during the process of divorce, as well as being difficult to enforce.  Why? Because a spouse’s financial and employment circumstances change, and the court may not concur with arrangements set down in a premarital agreement.

Can your prenup be challenged?  We believe that to answer that, the comprehensive and specific nature of California law should be taken into consideration by anyone thinking about challenging an existing prenuptial agreement. Seeking advice from a knowledgeable and experienced family attorney at Dinnebier & Demmerle should be your first step.  As Orange County’s premier family law specialists, our attorneys can provide answers to your questions and concerns, clarify and establish your legal rights, and represent you in court. Please call at your convenience to set up a consultation. We’re ready to move forward when you are! Just contact us in Tustin at 714-838-1099.

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