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Prenuptial contract may be difficult to enforce in divorce case

Prenuptial agreements have become somewhat common in the divorce process in California and elsewhere. A prenup is a contract entered into prior to the marriage. It contains provisions that generally define who gets what property if there is a separation and divorce. It was traditionally used by a wealthy person entering a marriage with a less wealthy individual, and the purpose was to limit what the less wealthy partner would be able to take out of the marriage if it ended.

Experts have long debated the bad logic and unromantic thinking that forms the premise for prenuptial contracts. A major component is a feeling of distrust by the wealthier spouse that the less wealthy one is intending to marry for insincere reasons. He or she may be a gold digger and thus not deserving of a proper division of property.

In some cases, there may be legitimate reasons why certain patterns of pre-ordained property division will be fair and appropriate for the parties. Where both persons have legal counsel, there may be a helpful framework of property division that is stipulated. It helps if a spirit of fairness permeates the terms of the agreement.

In California, the prenup has been subjected to legal limitations. Similarly in other states, the laws and decisions include restrictions or qualifications that vary from state to state. In addition, such agreements in all states are not allowed to specify the amounts or terms of child support because only the courts have jurisdiction over that issue.

In California, the divorce laws require that a prenup signed after 2002 is deemed to be involuntarily executed if the complaining party did not have independent legal counsel or did not waive the right in a legally acceptable manner. The parties must have waited at least seven days before signing the agreement, each must have had legal capacity to enter into a contract, and there must not have been fraud, duress, or undue influence. The last restriction includes the duty of the wealthier party to make full disclosure of all assets and income.

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