A pre-nuptial agreement is usually designed to protect assets from becoming part of the community property estate during marriage and to limit, or eliminate, rights to alimony. However, one must be cautious in the preparation and execution of such an agreement. There are many procedural requirements for a valid and enforceable agreement, which will be explored in this article.

Family Code Section 1615 sets forth the parameters for a Court to examine when confronted with a request to determine the validity of a pre-nuptial agreement. That section provides that an agreement is unenforceable if either (1) the party against whom enforcement is sought did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed.

In determining whether the agreement was executed voluntarily, the Court must evaluate whether the party seeking to invalidate the agreement: (1) received independent legal advice regarding the agreement or waived that advice in a separate signed writing, (2) had not less than seven calendar days from the time he/she was presented with the final version of the agreement and when it was signed, (3) was fully informed of the terms and basic effect of the agreement in a language he/she understands if unrepresented by independent counsel, and (4) was subject to fraud/duress/undue influence.

It is important to scrutinize the statutory language guiding the Court. Family Code Section 1615 is set up in such a way that it requires the Court to invalidate the agreement if the above requirements are not met. This affirmatively places the burden on the party seeking to enforce the agreement that the procedural safeguards were met at the time the agreement was executed.

A fertile ground to set-aside a pre-nuptial agreement is the requirement that one party be represented by independent counsel in the negotiation and execution of the agreement. Although this requirement can be waived in a signed writing, it is generally a good practice to have both parties retain and consult with independent counsel. If the agreement is especially complex in nature, it is best to ensure that the agreement is explained completely by a family law attorney so it will be deemed voluntary when enforced.

In determining whether a pre-nuptial agreement is unconscionable, the Court must examine whether, at the time the pre-nuptial agreement was signed, the party against whom enforcement is sought: (1) was provided a fair/reasonable disclosure of property, and (2) did voluntarily and expressly waive, in writing, any further right to disclosure of the property or financial obligations of the other party, or (3) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. Generally, this requires the party who seeks enforcement to validate that all material assets to be kept separate were accurately and fully disclosed. Obviously, the Court will not enforce an agreement when one party waived his or her interest in asset(s) that he or she did not even know about.

Finally, the most important issue to consider in the execution of a pre-nuptial agreement is the propriety of including a waiver of alimony. If the pre-nuptial agreement purports to waive rights to alimony, the person waiving the right to alimony must have met and conferred with independent counsel to discuss the agreement prior to its execution or the alimony waiver will be declared invalid. More importantly, the Court can decline to enforce a waiver of alimony if, at the time of enforcement of the agreement, the waiver is deemed “unconscionable.” Typically, the waiver will be deemed unconscionable if the spouse requesting support is elderly, disabled, or otherwise has no ability to support himself/herself.

Although a premarital agreement may seem bulletproof simply because it bears the signature of a future spouse, it is often not that simple. Competent counsel is always recommended to make an agreement that will hold up in Court when put to the test. Otherwise, one may just end up with a fancy agreement that does nothing in the event of divorce.