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What is an unconscionable prenuptial agreement?

For being as widely used as they are, prenuptials are still very, very tricky to get right. Numerous elements must be included for it to be enforceable in court, and even more things that, if included, make it invalid. While many times illegal elements are simply ignored by the family court, there is one sure fire way of getting an entire prenuptial agreement thrown out, and that is to make it so completely unfair to one spouse that enforcing it would cause them severe financial hardship. This is known as an unconscionable contract and is almost always ruled invalid.

There are several things that a spouse can agree to give up in a prenuptial agreement that they would normally be entitled to upon divorce. You can give up marital property, your right to split debt with your spouse and you can even keep retirement and business interests separate through the use of a prenuptial agreement. However, adding clauses that try to waive a spouse's right to alimony, child support or custody will usually warrant a closer look.

If the family court finds that any prenuptial agreement unfairly benefits one spouse grossly over the other, it will be seen as unconscionable. This could happen even if all the necessary elements are there. Even though prenuptial agreements are only supposed to make rules about financial matters, there are some situations that simply cannot be enforced.

The protection provided by a prenuptial is only as good as the knowledge of the person that drafted it. To keep assets, interests and property safe after divorce, seek an experienced attorney to help draft a valid and effective prenuptial agreement.

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Victoria S. Linder Law Office
5303 Folsom Boulevard
Sacramento, CA 95819

Phone: 916-905-4805
Fax: 916-498-0127
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