5 Mistakes That Can Doom a Prenup

In community property states like California, where marital assets are divided 50/50 upon divorce, prenuptial agreements are especially common, as they allow future spouses to circumvent the state’s default property division rules. Prenuptial agreements are generally like any other contract, except that the emotional stakes are typically much higher. And, like all contracts, no prenup is ironclad; there are certain mistakes every couple can make that can doom or seriously compromise their prenup. To avoid such mistakes, consult a Stockton prenuptial agreement attorney before drafting or signing a prenuptial agreement. 

Failure to Provide a Full and Accurate Financial Disclosure 

Financial matters are the heart of prenups, and candor is the name of the game. California law requires both parties to provide each other a “fair, reasonable, and full disclosure” of their property in order for the agreement to be enforceable. Lying about, misrepresenting the value of, or hiding assets can result in refusal by a court to enforce the agreement. While one party to a prenuptial agreement may waive disclosure, they must do so voluntarily, expressly, and in writing. 

Lack of Independent Legal Counsel

It’s generally a good idea to be represented by legal counsel before signing any major contract, including prenups. It’s such a good idea, in fact, that California law almost requires it. A family law court may find a prenup unenforceable if the party against whom it is being enforced (1) was not represented by independent legal counsel at the time of signing or (2) after being advised to seek counsel, expressly waived representation by counsel in a separate writing. 

Improperly Executed Alimony Waivers 

Prenuptial agreements can cover nearly all financial obligations between the parties, including spousal support, also known as alimony. (Child support is a notable exception.) While California law generally disfavors alimony waiver provisions in prenups, they will do so if certain conditions are met. Any provision in a prenup affecting alimony, including a waiver of it, is unenforceable if the party against whom enforcement is sought was not represented by independent counsel at the time the agreement was signed. And even if said party was represented by independent counsel, courts nonetheless scrutinize alimony waivers carefully and will toss them if they are found to be unconscionable. 

The Appearance of Pressure or Duress 

As you might expect, prenups are enforceable only if the parties enter into them voluntarily. They are void to the extent that they were procured under duress. Any circumstances indicating duress — e.g., no independent counsel or waiver, signing very close to the wedding date, significantly one-sided provisions — can raise a court’s suspicion.  

No Severability Clause 

What happens if one provision of a prenup is deemed to be unenforceable, but the rest is otherwise valid? Is the entire agreement unenforceable? Yes, unless it contains a severability clause. These clauses allow the court to “sever” unenforceable provisions so that the rest of the agreement remains enforceable. 

Craft an Enforceable Prenup With Help From a Stockton Prenuptial Agreement Attorney 

The best way to ensure that your prenuptial agreement is enforceable is to enlist the assistance of an experienced attorney — after all, California law all but requires it. To get started, please contact a Stockton prenuptial agreement attorney at McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.