A prenuptial agreement is an extremely valuable contract intended to protect you should the unthinkable happen and your marriage ends in divorce. Nobody likes to think about divorce, especially when you’re planning a wedding. And while divorce rates have been steadily declining over the past several years, still far too many marriages come to an unpleasant end and spouses go their separate ways.
If you’re marrying later in life, your chances of staying blissfully wed until death do you part are better now than they were…but with more life under your belt, you’re also probably entering into the relationship with more assets, debt, or both than you did the first time around. You may also have children to whom you want to leave property should divorce occur in your future.
There are many good reasons to enter into marriage with a prenuptial agreement in place. There are also many mistakes couples must avoid in order to ensure your prenuptial agreement is valid and will protect you down the road.
What can make a prenuptial agreement valid or invalid?
In the state of California, the Uniform Premarital Agreement Act clearly outlines the conditions that must be met for a prenuptial agreement to be valid, and what could cause it to be deemed invalid in court.
First, allow me to state what is probably obvious about what must be true for a prenuptial agreement to be valid:
- It has to be an agreement—neither person can be forced, coerced, or tricked into signing it, and you must both sign it voluntarily, with both of your attorneys present.
- It has to be prenuptial—prepared and signed well before the actual wedding.
- It has to be fair—if a judge deems the terms to be such that one party will suffer great hardship while the other makes out like a bandit, the agreement can be thrown out.
Can a prenuptial agreement be challenged during a divorce?
If it’s valid, it should NOT be easily challenged. That’s why it’s important you and your partner go through the process together with care and conscientiousness, and with the help of two qualified family law attorneys—one for each of you. (If you would like me to work with you in preparing your prenuptial agreement, keep in mind I can only represent one of you, but I will be happy to give you the names of other trusted attorneys who can represent your soon-to-be spouse. Contact me to discuss.)
Now, let’s look at seven mistakes you must avoid to ensure your prenuptial agreement is valid.
Mistake #1 – Asking your attorney friend to “just write something up.”
Prenuptial agreements are very specific types of contracts and California law mandates how they are written and executed. Unless your friend specializes in California family law, chances are very good any general-type contract he prepares for you is NOT going to protect you, and probably won’t even be considered a valid prenuptial agreement by the courts.
Mistake #2 – Going online and getting a preprinted agreement so you can fill in the blanks.
As convenient (and cheap) as it may seem to try and do it yourself—or to use an online legal service—don’t do it. A properly prepared prenuptial agreement requires you to involve qualified attorneys who know the financial details of both you and your soon-to-be spouse. A fill-in-the-blank form, even if there’s an online attorney somewhere supposedly double-checking things, just isn’t sufficient. You may think you’re saving money, but you’ll more than likely find out you paid for something not worth the paper it’s printed on—and when you do, it will be too late to do anything about it.
Mistake #3 – Having only one attorney represent both of you.
California law is very clear on this point: each party must have his or her own independent counsel to represent them during the prenuptial agreement process. (Should one person absolutely refuse to have separate representation, that person must provide written acknowledgment stating s/he was advised to get a lawyer but willingly chose not to do so. I strongly recommend against taking this route. It not only fails to provide equal representation to both parties, but it opens up the entire agreement to scrutiny and possibly being deemed invalid by a judge in the future.)
Mistake #4 – Waiving your right to spousal support.
You may not like the idea of collecting alimony, or may think it’s not applicable to your personal situation. But there is plenty of case law in California that shows an entire prenuptial agreement can be thrown out if a judge decides the spousal support portions are unfair. An agreement also can’t require anything in terms of spousal or child support that are outside the law. So no matter how generous or reasonable you are trying to be, don’t agree to something that’s going to cause the whole contract be deemed invalid by a judge in the future.
Mistake #5 – Rushing through the process and signing at the last minute before the wedding.
You really do need to plan ahead. In California, there is a mandatory 7-day waiting period between when the “final draft” of the agreement is received, and when it can be signed. If you violate this waiting period, the agreement could be deemed invalid. In addition, it’s NOT a good idea to sign it too close to the wedding date. After a divorce, a judge could be persuaded that an agreement signed the night before or the morning of a wedding was signed under pressure or duress, and might therefore decide to invalidate the entire agreement.
Mistake #6 – Preparing an agreement with incomplete financial information.
Maybe there are certain assets—or debts—you’d rather not tell your soon-to-be spouse about. Maybe you want to hide certain property or accounts because you want to keep them private. Perhaps you’re trying to avoid embarrassment by not disclosing you owe money to certain creditors. Or maybe you figure some small financial issues aren’t worth mentioning. The problem is that executing a prenuptial agreement with incomplete information, i.e., without a fair and full disclosure of your property and financial obligations, could invalidate the whole agreement based on allegations that you intentionally entered the agreement with the intent to defraud your future spouse.
Mistake #7 – Signing the agreement after a few drinks.
Believe it or not, if one or both of you are highly intoxicated because of alcohol or drugs when you sign, a court may invalidate the agreement based on one or both parties having been unable to consent due to mental incapacitation. The same could be true if one or both parties are mentally incapacitated for other reasons—so getting your partner to sign while they’re medicated after surgery or an accident, for example, isn’t a great idea.
The Bottom Line
If you work with qualified family law attorneys and avoid these mistakes while preparing your prenuptial agreement, you should feel confident it will protect both you and your partner. If you are ready to begin preparing your prenuptial agreement, get in touch. I love helping couples start marriage off on the right foot, with financial protection and peace of mind.