Prenuptial agreements or premarital agreements in California are governed by California’s Uniform Premarital Agreement Act. This an agreement made by a couple prior to marriage that will automatically be effective upon marriage. This article is Part 2 and focuses on the rules relating to alimony, also known as spousal support.
Do we need to involve attorneys?
Yes, if you want it to be enforceable later. The rule is that the person against whom enforcement of the spousal support provision is sought must have been represented by independent counsel at the time the agreement containing the provision was signed.
Can we put in any terms we want as long as we agree, and attorneys are involved?
No, when it comes to spousal support, the court will not enforce a provision that is unconscionable even if the person who agreed to that unconscionable provision was represented by independent counsel.
Is there a waiting period?
Yes, the party waiving spousal support needs to have seven days between the prenup is presented and signed and be advised to seek independent counsel.
How does a court decide what is unconscionable?
The court will look at the assets and earning power of each spouse and may determine that a waiver of spousal support is unconscionable if one spouse has significantly less than the other. Also, if the court determines that it would be unfair to enforce the waiver based on what the person would have received in spousal support if the prenup hadn’t been signed.
What other factors will be considered to invalidate the prenup?
The prenup cannot have been executed under duress, fraud or undue influence.
What are some other things to watch out for?
It is important for the spouse waiving the support to have actual or constructive knowledge of the assets and obligations of the other party or to voluntarily waive such knowledge. Because of this, if the parties want an enforceable prenup, both need to be full and accurate in their disclosure of assets and debts and should not attempt to lie or trick the other person
If you are looking for a local, Dixon attorney to assist with a divorce or family case, please give us a call.
