Is a Pre-marital Agreement the Right Solution for You?
Parties have the option to enter into a pre-marital agreement (also referred to as a pre-nuptial agreement) before the marriage. If they carefully follow the requirements, the agreement will likely be a valid and enforceable document in the event the marriage ends. Although these agreements may not seem romantic (because they are not), pre-marital agreements are highly useful documents that can save a great deal of stress and expense during a divorce. Couples may also enter into a post-marital agreement after the date of the marriage.
If you are considering a pre-marital or post-marital agreement, contact Minyard Morris to discuss your options with a knowledgeable divorce attorney. We will listen to your concerns and explain to you the limitations and requirements of these agreements. We will ensure that you have the information necessary to make the right decision for your situation.
Can Pre-marital Agreements be Invalid or Unenforceable?
Proper drafting is key for the validity of a premarital or post-marital agreement. If one of these agreements is not properly drafted, it will likely be invalid or unenforceable. Even with a well-drafted document, issues of interpretation and/or validity may still arise in a future divorce proceeding. Legal presumptions apply to these agreements, which may invalidate the agreement.
California law has evolved over the years regarding the issues that pre-marital agreements may address. It is critical to know the law as it existed on the execution date of the pre-marital agreement. If the parties do not agree as to the validity of an agreement, the divorce court will determine its validity. Trials on the validity and enforceability of these agreements may be extensive, and may involve the following issues:
- Unconscionability of the agreement
- Nature of the parties’ relationship when the agreement was executed
- Undue influence and voluntariness
- Lack of mental capacity
- Lack of full and accurate disclosures
- Compliance with family code requirements regarding the execution of the premarital agreement
- Contractual interpretation
- The timing of the execution of the document.
The validity of pre-marital agreements, due to the relationship of the parties, are dependant, in part, on public policy considerations.
Addressing Spousal Support in a Pre-marital Agreement
The law now allows parties to contract with each other before the date of the marriage, on the terms of spousal support in a future divorce in certain circumstances. This changes the prior prohibition of addressing spousal support in a pre-marital agreement. However, a provision relative to spousal support will not be enforceable if a family law court determines that the provision is unconscionable at the time of the divorce.