Both spouses should have a separate independent attorney when entering into a prenuptial agreement in California.
A prenuptial agreement (also called a premarital agreement or prenup) is an agreement that a couple signs prior to getting married. The agreement can protect premarital assets, clearly identify separate and community property assets and how all assets would be divided in the event the of a separation or divorce. If either party is a business owner, the agreement can also protect business assets and debts. Many times, individuals choose to sign prenups in order to avoid the time and costs associated with divorce or separation proceedings in a court of law. Without a prenup and absent a settlement, parties may find themselves in court litigating several issues in lengthy and costly divorce proceeding.
A prenuptial agreement must comply with certain legal criteria in order to be considered legal and binding. In the event that a couple signs a prenup and later decides to separate or divorce, it is possible that one spouse may challenge the validity of the prenuptial agreement in court. The court will then rule on whether or not the prenuptial agreement is binding and enforceable. If the court rules that the agreement is not enforceable, then the parties are not required to comply with its provisions.
This is why it is important to decrease the likelihood of the prenuptial agreement being challenged in court. One way to do this is to ensure that both spouses retain the services of separate independent attorneys to represent each of their interests. Do not engage one attorney to represent both parties.
When prenups are challenged in court, one of the arguments a spouse may bring up is a claim that they didn’t have an attorney and therefore did not have the opportunity to have someone explain the agreement to them. They can proffer that they didn’t understand what they were signing, no one answered their questions, and therefore the prenup should be held invalid. In order to avoid your prenup being challenged based on this argument, make sure that both parties have an attorney and each party has an opportunity to have their questions answered and their interests represented. This may save the parties a lot of time and money. Remember, the primary purpose of signing a prenup is to avoid the costs associated with lengthy litigation.
Stay tuned for more blog posts about how to decrease the likelihood of your prenup being challenged in court.
If you have any questions about prenup agreement, how to get a prenup or other family law related concerns, please call us for a free 30-minute consultation.
Attorney Jeffrey P. Mach, Jr. is a Certified Family Law Specialist in the state of California. Mr. Mach is not a specialist in any other state.
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