So you’re thinking of getting married—maybe even for the second or third time. You’re experiencing the old “approach-avoidance” conflict. You love this person, but you have a nagging thought in the back of your mind that statistically, this is still a 50-50 gamble. You have accumulated some assets, maybe a nice house, maybe a successful business. You have a child or children from a prior relationship whom you want to have a fair share of your estate should something happen to you. Eureka! You have it: a prenuptial agreement. Oh happy day—the perfect solution.
Or maybe this is your first marriage and you’re about to marry the love of your life. Everything is progressing smoothly toward the big day, when out of nowhere, your spouse-to-be advises you that he or she would like a prenuptial agreement. As if that wasn’t bad enough, the terms being suggested tell you that if this relationship ends in divorce, you will be entitled to only what you alone accumulate during the marriage. You gradually overcome your initial shock and slowly rationalize the matter. You tell yourself that you will be married forever, and even if a divorce were in your future, your spouse after years of wedded bliss would be much more reasonable at that time.
A prenuptial agreement is a very helpful tool for those contemplating “tying the knot.” However, you should know that, like any other contract, a “pre-nup” is a legally-binding agreement. Like any other contract, a judge could declare your agreement to be invalid, however, under certain very specific circumstances. For example, if one party has much more property or income than the other, the court might consider factors such as whether there had been full disclosure, whether the provisions were fair and reasonable, whether the other party was coerced into signing the agreement, and whether the other party had received independent legal advice.
Prenuptial, Post-Nuptial & Divorce Agreements: Can you modify them?
Whether you want a pre-nup as a protective measure or you accept one to keep the marriage train moving forward, generally speaking in California, once you sign the deal is done. Thereafter, if a dissolution lies ahead to derail the love train, there can be no reasonable expectation of an outcome other than that mandated by terms contracted to in the pre-nup. The one way to avoid such a catastrophe, for both sides of the contract, is to live happily ever after.
Anthony J. Hill is a graduate of Southwestern School of Law in Los Angeles. He has practiced family law in Pasadena, CA since 1987 with an emphasis on mediation and negotiated settlements.