Collaborative Family Law And Mediation Services

Independent legal counsel and valid prenuptial agreements

| Jun 14, 2021 | Divorce |

When a California couple decides to have a prenuptial agreement before they get married, it is important that both sides understand the law to ensure that it is valid. Because disputes about these agreements are common if there is a divorce, the case might hinge on whether the agreement met the criteria to be deemed legally enforceable. There are many factors that are considered with a claim that the agreement should not be enforced. One that should be understood from the start is having independent legal counsel.

Not having independent legal counsel may invalidate the agreement

When there is a question as to whether the prenuptial agreement was signed voluntarily, one of the fundamental factors is if there was independent legal counsel. This will be scrutinized and could undo the agreement. The party who signed the agreement at the behest of the other must have independent legal counsel or be advised to have independent legal counsel. He or she can waive that right, but it must be done expressly in a separate writing. The person should have received the advice to seek this counsel at least seven calendar days prior to signing.

Understanding the consequences of a nullified prenuptial agreement

In California, when people are getting divorced, they will be subject to the rules of community property meaning that anything accrued during the marriage will generally be split. That can also impact property that the parties held before the marriage. If, for example, one spouse entered the marriage owning a business and had more income and accrued wealth than the other, he or she might want a prenuptial agreement to avoid having to split items that increased in value. It is a protective device. Failure to execute the agreement properly can nullify it and be exorbitantly costly.

Professional assistance can help with prenuptial agreements

In some instances, a person who is trying to get their prospective spouse to sign the prenuptial agreement will convince them that they do not need a legal professional of their own and either suggest they both use the same attorney or no attorney is needed at all. In other cases, the person who wanted the prenuptial agreement did so without an agenda and followed all the legal requirements, but the other person is saying their rights were violated. An example is claiming there was no legal representation or the time-frame of seven days’ notice was not adhered to. For representation and help with these complex situations, it is useful to have professional assistance from the start.