Premarital Agreements - Part III

How can a premarital agreement be overturned?

There are multiple ways to challenge the enforceability of a premarital agreement. For example:

1. Unconscionable

Under the Uniform Premarital Agreement Act (“UPAA”), a party may challenge enforcement of a premarital agreement by claiming that he was not provided with a “fair, reasonable, and full disclosure” of the other’s property and/or financial obligations. (Fam. C. § 1615(a)(2)A).) For this reason, it is common for attorneys to require that both prospective spouses complete and exchange Income and Expense Declarations and Schedules of Assets and Debts or similar forms.

2. Timing

Pursuant to the Family Code, the receiving party must be presented with the premarital agreement at least seven days before she signs it. However, the seven-day requirement does not apply in cases where the party was represented by an attorney from the time the premarital agreement was first presented to her. In other words, the seven-day waiting period applies to a party who was not represented by an attorney at the time she was first presented with the agreement. This provision is intended to ensure that the receiving party has sufficient time to retain an attorney and review the agreement with independent counsel.

3. Representation by Counsel

If one potential spouse does not have an attorney, he must sign a writing that states he is fully informed of the agreement’s terms and conditions, along with the rights and obligations he is waiving. Note that if one party does not have his or her own attorney, that party cannot waive the right to receive spousal support.

As set forth above, there are many ways to challenge a premarital agreement after divorce. Therefore, it is essential that you have your premarital agreement drafted and reviewed by counsel with knowledge of the California Family Code and the Uniform Premarital Agreement Act.