How Does a Premarital Agreement Affect Your Divorce?

Having a premarital agreement—commonly called a prenuptial agreement or prenup—can change the divorce process significantly.
Not having a premarital agreement in place does not mean you won’t get a fair division of your marital property. It doesn’t mean equitable distribution won’t occur. California law requires divorcing couples to divide community property equally unless you have a prenuptial agreement in place.

A premarital agreement, or prenup, is a legal contract set up by a couple who intends to marry. It can contain a wide range of information, including what happens to individual assets if the couple divorces.

What Can You Include in a Prenuptial Agreement?

A premarital agreement can contain anything you’d like to put in it, but some of the most common items these legal contracts cover include:

• A list of each party’s individual assets that they’re bringing into the marriage
• Information on which individual assets will remain individual assets in the event of a divorce
• A determination of how the couple will divide marital property in the event of a divorce
• An explanation of who’s responsible for debts
• Limits on spousal support in the event of a divorce

How a Prenuptial Agreement Affects the Divorce Process

A premarital agreement can affect a divorce in one of two ways. It can make the process easier. Alternatively, it can make it more complicated.

If you have a premarital agreement in place, you won’t have to negotiate over property division. You also won’t have to negotiate over other issues that the prenup includes. You probably won’t need the court to intervene and make decisions on your behalf, either. Both of those things save you time and money.

However, sometimes having a prenup can negatively affect your divorce—such as when one spouse asks the court to reject it. This can cause your divorce to take longer. It typically costs more in legal fees, too.

Can You Ask the Court to Reject Your Premarital Agreement?

You can ask the court to reject your premarital agreement, but you must have a legitimate reason. The judge in your case will determine if your reason for abandoning the premarital agreement is legitimate.

In some cases, prenups are actually invalid (and that’s one of the most common reasons people contest them during divorce).

What Makes a Prenup Invalid?

For a premarital agreement to be valid under California law, it must meet certain criteria. You must have it in writing, and it must be free from fraud.
Your premarital agreement can be invalid if either party was:

• Under duress
• Coerced
• Mentally incapacitated

Finally, if the agreement is “unconscionable,” the court may find that it’s invalid. This means that it’s incredibly unfair to one spouse.

Do You Need to Talk to a Divorce Attorney About Your Prenuptial Agreement?

You might need to talk to a Stockton family law attorney about your divorce. We can help you with all family law needs including premarital agreements, divorce, and many others.

Call us at 209-910-9865 for your case evaluation. We’ll be able to give you case-specific legal advice you can use moving forward.