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May 1, 2023
Seven Reasons Why Prenuptial Agreements May Be Unenforceable

Are you getting a divorce and concerned about a prenuptial agreement? Are prenuptial agreements legally enforceable in California?

Family law attorney Benjamin Vojtik from Hartley Law, APLC, who has been practicing law since 2018, discusses this crucial question and more in this helpful video.

If you’re dealing with a divorce involving a prenuptial agreement, it’s vital to understand the nuances and potential pitfalls. The video will guide you through seven reasons that can render your prenuptial agreement unenforceable. Ben outlines common mistakes and provides critical insights into “how prenups work”, with practical advice on “what to include in a prenup”.

Ensure a fully enforceable prenuptial agreement in California by onboarding one of our experienced prenup lawyers to represent you during your prenup. If you have any further queries to discuss with our certified attorneys or seek legal counsel about a family law matter, contact Hartley Law, APLC today at 833-647-2377.

Transcript:
Are you getting divorced and concerned about a prenuptial agreement and whether it’s enforceable or not? Well, I’m going to give you seven of the most common reasons why prenuptial agreements aren’t worth the paper they’re printed on.

Hi, I’m Benjamin Vojtik. I’ve been working here at Hartley Law, APLC for more than a decade, and I have been practicing law here since 2018.

Can Prenuptial Agreements Be Unenforceable?

So there are seven main reasons why prenuptial agreements tend to be unenforceable.

  • First, there needs to be a waiver of independent counsel.
  • Two, there needs to be seven days between when you’re presented with a document and when you sign it.
  • Three, there needs to be a separate document explaining your rights under the prenuptial agreement.
  • Four, there need to be sufficient financial disclosures.
  • Five, if it involves spousal support, you need to be represented.
  • Six, you can’t undermine the terms of the prenuptial agreement during the marriage after it’s executed.
  • And seven, if the court finds that the agreement is unconscionable, it can throw it out anyway.

Waiver Of Independent Legal Counsel

First, waiver of independent legal counsel. There needs to be a separate document signed waiving an attorney if you’re not represented. So now, this waiver can’t be in the prenuptial agreement. And it’s one of the most common mistakes that I see. The waiver ends up being in the prenuptial agreements, not in a separate document, and it’s just unenforceable right away.

And this is pretty common if you get documents, say, via LegalZoom or some other Internet service, they’re going to have this waiver. And there is no guarantee that those services provide that their service is consistent with state law.

Seven Days Between Being Presented With The Documents And When You Sign It

Two, there needs to be seven days between when you’re presented with the documents and when you sign it. So before 2020, if you had an attorney, then this didn’t apply. Since 2020, even if you have an attorney and you sign that document within seven days, it’s immediately unenforceable.

Explanation Of Right

Third, explanation of right. There needs to be a separate document in your primary language, which explains the rights that you are receiving and waiving in the prenuptial agreements. So, what’s going on with your inheritance? What rights to his assets are you waiving? What are you gaining? There needs to be that written down separately.

For example, if your primary language is Spanish and you receive this waiver in English, that basically says everything that you’re waiving, you’re waiving any right to his real property and stocks and brokerage. But your preferred language is Spanish, then the entire prenuptial agreement is immediately unenforceable.

Sufficient Financial Disclosures

Four, there need to be sufficient financial disclosures. So if you’re entering into an agreement that’s going to impact your financial future, it only makes sense that you’re aware of what finances you have and what the other person has, and vice versa.

And if these disclosures don’t occur, then for the most part, the prenuptial agreement will be held unenforceable because the court doesn’t want a situation when one party just signed away so many rights, blindly in finances, blindly.

Spousal Support and Legal Representation

In regards to spousal support, agreements involving spousal support. This is just a black and white issue. The party that would be receiving support has to be represented by an attorney. If there isn’t an attorney representing that party, then the spousal support provision is unenforceable.

Even if one person volunteers to pay for the other person to see an attorney. If that person declines and just signs it anyway, it’s still unenforceable as to the support provision.

Undermining The Terms Of The Prenuptial Agreement During The Marriage

Six, you can’t undermine the terms of the prenuptial agreement during the marriage. As an example, if the prenuptial agreement provides that this is his property and this is her property, but then they accrue property during the marriage, that would be community in nature. So they earn money and that money would be both of theirs. And then they use that money that’s both theirs to pay for his obligations or for her obligations.

So that really does undermine the prenuptial agreement. It starts to create conflicting property interests and very often under those circumstances, the court will set aside the prenuptial agreement.

Unconscionable Agreements

And let’s say you did all of those things perfectly. You got the waiver of independent counsel. You waited seven days to sign it. You had the explanation of rights in the primary person’s primary language. Adequate financial disclosures were exchanged. Both parties were represented by an attorney for spousal support. And you abided by the terms of the agreement throughout the marriage.

If the court looks at your case and sees that one party would be living substantially better than the other party, if this agreement is enforced, the court can still throw out the agreement because they find that it’s unconscionable.

Legal Help With A Prenuptial Agreement

So, if you find yourself in a situation where you’re concerned about the enforcement of a prenuptial agreement, don’t hesitate to give us a call. Thank you.

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