Enforcement (or Set-Aside) of Pre-Marital and Post-Marital Agreements

A pre-marital agreement, also know as an antenuptial agreement, is a written contract prepared before marriage that concerns the ownership of each person’s respective assets in the event unexpected circumstances occur such as divorce, separation or death. Pre-marital agreements can be written to include the status and category of such assets, treatment of future earnings, control of property, and the division of property in the event a divorce occurs.

Post-marital agreements are a written consensus between two parties, entered into after the marriage occurs. The purpose of a post-nuptial agreement is similar to the purpose of a pre-marital agreement in that it helps parties work through potential problems before they occur so there are no surprises down the road. A post-marital agreement, though more restrictive than a pre-marital agreement, still offers protection to both parties by allowing the couple to discuss the division of assets without leaving that division up to guidelines provided under California law.

In the event of a divorce, either party may seek to have a pre-marital or post-marital agreement enforced. When a divorce is filed, either party may seek to have the previously made agreement thrown out on various grounds such as:

• If the agreement leads to an unconscionable result
• If the agreement was not properly executed
• If the agreement was made under duress or pressure
• If the agreement was not made voluntarily
• If there was no time for consideration of the agreement
• If the agreement was made based on false or incomplete information
• If the agreement was not reviewed by independent counsel

If your spouse is attempting to get your pre- or post-marital agreement thrown out, you may seek to rebut the claims presented to have the agreement enforced. For an agreement to be enforceable, it must be valid and free from any of the aforementioned issues. If you have questions about the enforceability of a pre-marital or post-marital agreement please contact our office today.

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