Prenuptial agreement when can it be disregarded?

Recently on our legal forum a user asked,I have been advised by a Fresno real estate attorney not to pursue divorce because a judge might disregard my prenuptial agreement and decide assets are community property? How great is this possibility? We have a prenuptial that states in our case all property including earnings and income result from skill, effort, work belong to each and shall be their property.”

What is a prenuptial agreement?

A prenuptial agreement is a contractual agreement signed by both parties prior to marriage that outlines how a couple’s assets and other property will be divided if the couple eventually divorces. State laws determine how a prenuptial agreement is codified. For example, in the State of California, prenuptial agreement requirements are outlined in the California Family Code Section 1500 and states “The property rights of spouses prescribed by statute may be altered by a premarital agreement or other marital property agreement.”

What does a prenuptial agreement do for each spouse?

Prenuptial agreements allow couples to customize their marital contract as it relates to allocation of property, death benefits, and creating a trust or will. Other issues, such as child support and spousal support, may also be altered but are more likely not to be enforced if the court determines the agreement violates public policy. In fact, many legal experts suggest eliminating all references to a child’s future support – which could be viewed as violating public policy- or spousal benefits – which could be viewed as disregarding an important marital right. Either effort invites the court to disregard those provisions.

Precautions regarding prenuptial agreements

If you and your spouse decide to get a prenuptial agreement it’s important to understand what makes an agreement valid and how long you must sign the agreement prior to the marriage. You will also need to discuss your agreement with your own lawyer who can ensure that your rights are protected. In some states and under specific conditions, you may be legally allowed to hire the same lawyer, but it’s not recommended.

Following these steps and ensuring that both parties understand their rights and obligations under the contract increases the odds that the prenuptial agreement will be enforced. With that said, however, there are specific provisions under California law which allow a judge to disregard certain elements of a prenuptial agreement. Without more information about your agreement it’s impossible to say what might be happen in your case, but below we discuss general issues that can jeopardize enforcement.

When can a prenuptial agreement be disregarded?

  1. The court deems the agreement fundamentally unfair.

Some judges have effectively ignored prenuptial agreements and enforced equitable distribution if they determine the agreement is not fair. Unfortunately, this term is a bit subjective and different judges in different jurisdictions have made various rulings. 

In addition to the notion of unfair, it’s also possible to have a prenuptial agreement invalidated if the court determines enforcing the agreement is unconscionable- meaning that there was an absence of meaningful choice and the court determines the agreement highly favors one party (i.e. unequal bargaining power or one-sided agreement without justification).

  1. Either party did not enter into the agreement voluntarily or disclosure requirements were not met. 

Although this does not sound like it applies to your particular case, it is possible for a court to not enforce a prenuptial agreement if they believe that either party was coerced, a victim of fraud, under duress, or either party involuntarily entered into the agreement.

Additionally, the court may not enforce the agreement if they believe that one of the parties did not have reasonable and full disclosure of the other party’s property or financial obligations. 

3. The agreement violates public policy or law.

If you hired a lawyer who understood laws and policies of your state this probably is not an issue, but another reason an agreement can be unenforceable is if the court determines the agreement violates public policy. There are any number of reasons this might be true including an agreement that promotes divorce, enforces an unfair spousal support provision, forces some type of payout for marital infidelity, or creates child support payments that do not follow the state’s statutory requirements and are deemed not in the best interest of the child.


Bottom line:

Prenuptial agreements can be a controversial issue for marrying couples. Some experts argue, however, they can open up the dialogue about financial issues and can strengthen a relationship. And while courts do not generally disregard prenuptial agreements, there are times when California courts and other courts have chosen not to enforce a prenuptial agreement - including when they determine the agreement is fundamentally unfair due to a change in circumstances between the date of the execution of the agreement and the date of enforcement.

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