In California, the idea of a prenuptial or postnuptial agreement is often automatically perceived as people who are trying to have it invalidated as part of a contentious divorce. This is understandable given the number of high-profile cases that are centered around this very issue.
However, many people are simply thinking about a document of this kind either before or after they have gotten married as a protective device. It does not necessarily mean that they are preparing for a divorce and do not expect the marriage to work out.
Unfortunately, many marriages fail. When there is a prenuptial or postnuptial agreement, it can state who will get various properties, how spousal support will be paid and more.
A key to the agreement is to make sure there are no obstacles to its enforcement. This is imperative for both the person who has greater assets and the person who has less. A fundamental part of that centers on fairness. The law is specific about when these agreements are unenforceable, so to keep from the divorce being a battle over it, it is useful to make sure it is fair from the beginning.
Unconscionability is a term that people need to be aware of
The term “unconscionability” refers to unfairness. The agreement is expected to meet the requirements to be fair when it is used to determine how the settlement of the divorce is handled. There are three tenets that need to be met to avoid the document being categorized as unconscionable.
First, there must be a full disclosure of all the property, debt and financial obligations of the other person. If one member of the union had substantial assets they did not disclose and the other person finds out about it after signing the agreement, this could be the basis to nullify it.
Second, the person who did not get this information must have waived their right to receive it. This must be in writing. It might be unwise for people to agree to this and it should be discussed with a legal professional as the document is being prepared.
Third, the party who is trying to nullify the agreement must have had adequate information about the other person’s financial obligations. There could be overwhelming debt that was left undisclosed. That would be problematic for any marriage and it is especially troublesome in a divorce with a prenuptial or postnuptial agreement.
People with a prenuptial or postnuptial agreement should strive to be fair
When thinking of seeking help with family law concerns, people may view it as acrimonious and part of a divorce litigation. There are some who are simply trying to end their marriage amicably and reach a reasonable resolution without ongoing disagreement or hard feelings. A well-crafted prenuptial or postnuptial agreement can help with that.