Do prenups work? For most people, they do – but there are certain things that can make a prenuptial agreement unenforceable when you go to court. The language in a prenup has to be crystal-clear; otherwise, either party can argue it in court.
Here are the basics about how – and why – prenups work, as well as what makes them invalid.
Do Prenups Work?
Prenuptial agreements work when they’re executed properly. In order to be executed properly, both spouses must have:
- Received complete information from the other spouse regarding his or her property and finances before signing the agreement
- Had at least a week between receiving the agreement for the first time and signing it, so that there was enough time to have an attorney review the agreement
- Been represented by a different attorney when signing, unless he or she received full information in writing about the terms and effect of the agreement (to include rights or obligations signing the agreement would cancel out) and he or she signed a separate document that acknowledged his or her receipt of that information, as well as identifying the person who gave that information and waiving the right to an attorney
Further, prenups have to be fair to be enforceable. If the judge in your case sees that the prenup is extremely unfair to one spouse – such as leaving him or her with nothing but the clothing they owned at the time of the marriage – the judge isn’t likely to uphold it in your case.
Prenuptial agreements can only address certain things, too. Some things are off-limits, such as anything pertaining to the couple’s future children.
Related: Prenups in California
5 Things to Know About Prenuptial Agreements
- Fairness matters. The court will look at your prenup to make sure it’s not going to leave one spouse destitute while the other takes it all.
- Full disclosure is required. Both parties are legally obligated to disclose the truth about everything in a prenuptial agreement.
- Premarital assets are usually off-limits to both parties. Most often, prenups separate premarital assets and designate them to remain with their original owners. While that’s usually the case anyway – separate property remains separate under California law – there are always exceptions.
- You can set terms for alimony. Many prenups set terms for spousal support, often requiring the lower-earning spouse to waive his or her rights entirely.
- You can’t include anything having to do with your (future) children. Prenuptial agreements can’t include things like child support amounts or child custody arrangements. Those things are always based on what’s best for the child at the time – and the courts won’t enforce prenups that demand custody or limit the amount of child support that one spouse will have to pay.
Related: Community property basics
What Makes a Prenuptial Agreement Invalid?
Do prenups work all the time? No. Some things can make a prenuptial agreement invalid, such as when they:
- Are not in writing
- Are not properly executed
- Were signed under pressure from one spouse
- Weren’t read fully before signing
- Were rushed to the point that the signing spouse didn’t have adequate time for consideration
- Contain invalid provisions
- Contain false information
- Contain incomplete information
- Were signed without consulting with an attorney, unless the signer waived his or her right to counsel
- Are unconscionably unfair
You can argue a prenuptial agreement in court. It’s up to the judge whether it’s enforceable – and in some cases, some parts of a prenup are enforceable while others are not. For example, the judge may rule that waiving spousal maintenance is fair, but that requiring one spouse to move out of the marital home and give up his or her vehicle may be unenforceable.
Do Prenups Work? Sometimes. Here’s How to Get Legal Help.
If you need to talk to an attorney about a prenuptial agreement, we may be able to help you. In fact, we can help you with any aspect of your divorce. Call us today at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation.