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Is your prenuptial agreement really valid?

More couples are signing prenuptial agreements, especially if one or both parties bring significant assets to the marriage. If you were one of those couples, and you are now facing a divorce, it might a good idea to review the agreement to be sure that it is actually valid.

What could make my prenuptial agreement invalid?

Most of the issues with prenuptial agreements fall into one of the following categories:

1. Your agreement was oral. Prenuptial agreements must be in writing.

2. You find out that your spouse left out important information or lied. You were entitled to full disclosure of assets, liabilities and income before signing.

3. Your agreement might not have been executed prior to the marriage or in accordance with current law.

4. Your soon-to-be spouse presented the papers to you too close to, or even on, the day of the wedding.

5. You did not have enough time to read and understand what you were signing.

6. Your future spouse did not give you the opportunity to have your own lawyer review the agreement to be sure that you were not signing away rights you did not want to waive.

7. Your soon-to-be spouse (or friends or family members) put pressure on you to sign the agreement even though you might not have felt comfortable doing so.

8. Your agreement contains provisions that are considered invalid (not allowed by law) or unconscionable (would put you at a financial disadvantage in a divorce).

Why would you want to have your prenuptial agreement declared invalid?

Since California is a community property state, you and your spouse jointly own the property included in the marital estate. If the court throws out your prenuptial agreement, any property you waived your right to in the prenuptial agreement that increased in value during the marriage could be added to the marital estate, which means you might be entitled to part of it.

You and your soon-to-be ex-spouse will have to start over when it comes to property division. As part of that process, the court will more than likely redefine what property constitutes the marital estate. This means that you and your attorney will have the opportunity to argue to the court what property should be included in the marital estate. If the court determines certain provisions of the prenuptial agreement to be invalid, the property attributed to them will also need additional consideration by the court.

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