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Will Your Prenup Be Enforceable in Court?

Posted on in Divorce

California divorce lawyerIf you are going through a divorce in the Santa Clara County and have signed a prenuptial agreement, you may wonder how it will affect your proceedings. In many cases, prenups simplify the divorce process, as these agreements dictate how property will be divided. Property division can be one of the most contentious aspects of divorces.

However, there are many requirements a prenup agreement must meet in order for the court to enforce it in full, as written and signed by the parties. If you seek to invalidate a prenup agreement, it is important to be aware of common mistakes that can be made. If you seek to enforce a prenup agreement, it is critical to identify weaknesses in the agreement and formulate a defense as to why the contract should be enforced.

In general, California follows the Uniform Premarital Agreement Act (UPAA), which is a set of recommended laws adopted individually, in whole or in part, by states across the country. Some of the requirements and prohibitions found in UPAA include:

  • A prenup can only dictate property rights between a married couple. It cannot be binding as to child custody or child support, which are considered rights of the children of the marriage.
  • Both parties must have the mental capacity to consent. Also, consent to the agreement cannot be based on fraud, inappropriate influence, or mistake. These are a basic contract law principles.

In addition, if the prenup was agreed to after 2002, the agreement must conform to the following:

  • The spouses must have been completely informed of the other spouse‚Äôs property prior to signing the prenup.
  • The spouses must have had at least seven days to review the prenup before signing it.
  • The spouses must have been represented by separate lawyers. This is not a requirement where the unrepresented spouse signed a document expressly waiving the right to an attorney and where the unrepresented spouse received full information in writing about the effect of the agreement and has signed documentation acknowledging receipt of the same.

A Los Gatos, CA Divorce Attorney Can Evaluate Your Prenup Agreement

There are many other ways a prenup agreement may be invalidated. A Los Gatos prenup lawyer will review the agreement and the facts surrounding your marriage looking for any deficiencies that you may want to raise or that you may need to defend against.

Contact the experienced Los Gatos divorce attorney at the Ventresca Law Firm at 408-395-8822 to schedule your initial consultation. We accept clients in the Los Gatos, Sunnyvale, Saratoga, Cupertino, and San Jose areas.

 

Source:

http://www.uniformlaws.org/shared/docs/premarital%20and%20marital%20agreements/2012_pmaa_final.pdf

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