Tuesday, July 21st 2009
Top 10 Reasons A Premarital Agreement May Be Invalid
FindLaw has a list of 10 reasons which may cause a premarital or prenuptial agreement to fail. The original post was written by Sacramento family law Bartholomew & Wasznicky. Here is the list of reasons:
1. NO WRITTEN AGREEMENT.
2. NOT PROPERLY EXECUTED.
3. YOU WERE PRESSURED.
4. YOU DIDN'T READ IT.
5. NO TIME FOR CONSIDERATION.
6. INVALID PROVISIONS.
7. FALSE INFORMATION.
8. INCOMPLETE INFORMATION.
9. NO INDEPENDENT COUNSEL.
10. UNCONSCIONABILITY.
In California, the validity of premarital agreements is governed by California Family Code section 1615(a), which generally adopted the findings of the case of a California Supreme Court decision from 2000 involving baseball player Barry Bonds.
Family Code section 1615 requires that a court make specific findings. Specifically, the court has to enter a finding on the following:
1. Whether the party against whom enforcement was soughtwas represented by an attorney;
2. Received the premarital agreement at least 7 days before signing it;
3. If not represented by an attorney, that a full description of the rights affected by the premarital agreement was given by the other party;
4. That there was full disclosure of the assets; and
2. That the party against whom enforcement is sought had a full understanding of the rights being waived.
In addition, the court in the Bonds case considered the following factors:
1. The coercion that may arise from the proximity of execution of the agreement to the wedding, or surprise in the presentation of the agreement;
2. Presence or absence of independent counsel;
3. Inequality of bargaining power, in some cases indicated by the relative age and sophistication of the parties;
4. Whether there was full disclosure of the assets; and,
5. The parties’ understanding of the rights being waived under the agreement, or at least their awareness of the intent of the agreement.
Premarital agreements are complex. If you have any questions about a premarital agreement, please contact one of the attorneys at Crider Law.
View other articles for: Divorce and Separation, Financial Issues