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Spouses may challenge the fairness of a prenuptial agreement

Much is said about the importance of choosing the right time for couples to discuss a prenuptial agreement. Most often it is advised that a couple sit down and discuss their finances soon after their engagement. A prenuptial agreement used to be a dreaded discussion, but as many modern young California adults come into marriages with already accumulated assets, it is only natural for both parties to want to protect those assets. Although most couples give no thought to divorce when they get engaged, the reported high divorce rate is a reality that should be taken into consideration.

Despite how difficult it may be to find the right moment to broach the subject of a premarital agreement, it is not wise to leave it until the eve of the wedding. Couples may want to obtain the services of appropriate advisors to provide financial and legal advice to ensure that both parties understand every stipulation of the contract. What is regarded as fair at the time of the engagement may not seem so fair after years of marriage and further accumulation of assets.

If, in the event of a divorce, one spouse feels that their prenuptial agreement is unfair, he or she has the right to challenge the agreement in a court of law. The court will consider various aspects, including the date of the signed agreement. If it was signed just prior to the wedding, the court may suspect the agreement to have been signed under duress and without full disclosure. It will also compare what a spouse would receive had there been no agreement with what he or she will receive according to the prenuptial agreement. If the court deems it so, it retains the right to declare the agreement unfair.

Individuals in California who feel they are unfairly disadvantaged by a prenuptial agreement are free to take action. However, divorce laws could prove to be complex, and those who feel intimidated by the unfamiliar procedures may find comfort knowing that help is available in assessing their situation and deciding on the best route to follow. With appropriate guidance, the divorcing couple’s interests may be protected in a way that is fair to both parties.

Source: The Huffington Post, "When a Prenup Gets Thrown Out", Stann Givens, July 1, 2014

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Victoria S. Linder Law Office
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