When some California couples get married, they do so with concerns about what will happen if the marriage ends in divorce. To account for the possibility, they will create a prenuptial agreement. Even after they have gotten married, they can come to a post-nuptial agreement. This can address just about every issue that might be in dispute as part of a divorce except for child custody and support. However, there are potential issues that could lead to the document being unenforceable. This can be a critical issue for both spouses.

The law describes certain instances in which the agreement will not be effective. The agreement must be voluntary. If, for example, the person was coerced into signing it through threats implied or explicit, it may nullify the agreement. The agreement could also be unenforceable if it is deemed unconscionable, meaning it is unfair. To be considered fair, the party signing it must have a complete disclosure of the finances and obligations of the other party. These rights can be waived for the agreement to be valid. If they were not, it could be used to say it was a violation.

The signing party should have had an independent legal counsel to analyze the agreement at the time it was signed. There was a legal change that is relevant for people who signed an agreement after Jan. 1, 2020. If it was agreed to between Jan. 1, 2002 and Jan. 1, 2020, the person who signed the agreement stipulating what he or she would receive in a divorce had up to seven calendar days from the agreement being presented and being told to have legal counsel to when the agreement was signed. After Jan. 1, 2020, the legal counsel issue is eliminated and the person has seven days to agree and sign.

For many couples, a prenuptial agreement is a wise step to be shielded from the possibility of losing a significant amount of their assets in a divorce. However, the party who entered the marriage with lesser means could be taken advantage of in the agreement. For either side, allegations that prenuptial or post-nuptial agreements are unenforceable can be a challenge. A law firm with experience in family law and these agreements can provide advice on how to proceed.