A premarital agreement (often called a “prenuptial agreement”) can be made to plan for the possibility of a divorce.  They are most often used to try to exert control over spousal support and the division of assets and debts.  They can’t be used to control child support.  Here are some basics as regards the enforceability of premarital agreements.

Premarital Agreements

There are strict guidelines (see Family Code Sections 1610-1615) that must be followed to have a premarital agreement that will hold up in court.  To be legally enforceable it must be:

• in writing (although there are exceptions);
• signed by both spouses;
• voluntarily entered into; and
• not unconscionable when it was entered into.

The law says a premarital agreement was not entered into voluntarily unless all of the following are true (for the person against whom enforcement is being sought):

• The person at the time of signing the agreement was either represented by an independent attorney or waived representation in a separate document.
• The person had at least seven days between the time they were first presented with the agreement (and advised to seek independent legal counsel) and the time the premarital agreement was signed.
• If the person was not represented by an independent attorney at the time of signing, the party nonetheless was fully informed and fully capable of understanding the terms and basic effect of the premarital agreement as well as the rights and obligations he/she was giving up by signing it.
• The agreement and associated documents were not executed under duress, fraud or undue influence.

A person trying get out of a premarital agreement by claiming it was unconscionable at the time they entered it into must also prove that they didn’t:

• receive a full, reasonable and fair financial disclosure from the other person;
• waive in writing the right to such a financial disclosure from the other person; and
• have an adequate knowledge of the assets and obligations of the other person.

As regards spousal support provisions in a premarital agreement, the law says they are not enforceable against a spouse if the spouse wasn’t represented by an independent attorney at the time the agreement was signed.  Spousal support provisions that are “unconscionable” at the time of attempted enforcement are also not enforceable.

Premarital agreements can be a good idea to reduce conflict in the event of a divorce and sometimes even during the marriage.  But, as noted above, they must be carefully prepared and executed.