California law recognizes the validity of both prenuptial and postnuptial agreements; and, if you have one, it will most likely play a role in your divorce. However, there are several factors to consider, and there are issues that can render certain clauses – or potentially even the entire agreement – unenforceable. As a result, before you focus too intently on what your prenup or postnup says about things like property division, custody, and support, the first step is to understand whether your agreement is likely to hold up in court.
Three Key Questions About Prenups/Postnups and Divorce
1. Is Your Prenup or Postnup Legally Enforceable?
The first question to answer is whether your prenuptial or postnuptial agreement is enforceable as a whole. In California, there are at least three issues in particular that the courts examine in deciding whether or not to enforce a prenup or postnup. These are:
- Whether either spouse was coerced into signing the agreement or signed under duress;
- Whether the agreement was grossly unfair to either spouse at the time it was signed; and,
- Whether both spouses had legal representation when they signed the agreement or one spouse lacked sufficient knowledge of the legal implications of signing the agreement.
None of these issues will automatically void a prenup or postnup, and all of them are obviously far from black-and-white. But, if your spouse can raise a legitimate question as to the enforceability of your agreement, this has the potential to drastically affect the remainder of your divorce.
2. Are Certain Clauses in Your Prenup or Postnup Unenforceable?
Even if your prenup or postnup is enforceable as a whole, it is possible that certain provisions will be disregarded. For example, California law does not permit fiancés or spouses to enter into agreements that:
- Waive one party’s right to child support;
- Predetermine child custody and visitation rights; or,
- Involve nonpayment of alimony where the would-be recipient will be left nearly destitute or did not understand that they were waiving their right to support.
In addition, while allocation of debts is an important aspect of the divorce process which generally can be addressed in a prenup or postnup, there are restrictions here as well. For example, creditors may still be able to enforce joint debts against both spouses regardless of what the spouses have agreed between themselves in writing.
3. How Will the Enforceable Terms of Your Prenup or Postnup Affect Your Divorce?
Once you have determined which provisions of your prenup or postnup (if any) are problematic, what you are left with are the terms of your agreement that will have a direct impact on the outcome of the divorce process. For example, most prenuptial and postnuptial agreements will address (at least to a certain extent) things like:
- Alimony (spousal support)
- Business ownership and management
- Division of debts
- Division of separate and community property
- Methods for resolving divorce-related disputes
- Who gets to keep insurance and retirement benefits
- Who gets to keep the marital residence
Depending on how carefully and thoroughly your prenup or postnup was drafted, some of these issues could be fairly clear-cut; or, if there are gaps or clauses that require interpretation, you could still have a number of issues to resolve. In any event, if you have a prenuptial or postnuptial agreement, understanding its implications is key to understanding the rest of your divorce.
Contact a San Diego Prenup and Postnup Attorney
If you have questions about how your prenuptial or postnuptial agreement will impact your divorce, we invite you to contact us for a confidential consultation. To speak with an attorney, call (888) 837-3564 or contact us online today.