One common misconception regarding prenuptial agreements is that a court can simply disregard a prenuptial agreement in cases where the requirements are met in terms of something like spousal support waiver, where both parties were represented by legal counsel and the agreement was delivered to the other party not later than seven days prior to the wedding. The courts generally enforce agreements as they are written unless there is some profound difference between the circumstances of the parties at the time the agreement was negotiated and at the time they get divorced.
California law does provide that if a court finds any provision of the prenuptial agreement fundamentally unfair due to a change in circumstances between the date of the execution of the agreement and the date of enforcement, then the court is able to disregard or modify those provisions. The case law states that the justification for doing so have to be significant, so the judge cannot just say for instance that he tells the wife should not have agreed to the conditions back then. There has to be a change in circumstance that makes it fundamentally unfair to enforce the terms of that agreement at the time of the divorce.
A prenuptial agreement is fundamentally no different than an agreement with a car dealer to buy an automobile. It is considered an arm’s length agreement between two people, and the courts will enforce the prenuptial agreement as it is written. It is considered unfair for a person to agree to something, induce the other party to enter into the marriage based on that agreement, and when the agreement is, decide that they really should not have agreed and seek to have it set aside. It is like a bait-and-switch tactic which makes the courts reluctant to change the terms of an agreement in those circumstances.
This is why it is important for both parties considering a prenuptial agreement to be represented by legal counsel. I require it in all prenuptial agreements that I draft, not only for the protection of both parties, but for the protection of the attorneys; I would not want to find myself in a situation where ten years downstream, one of the parties tries to beat an agreement because he or she was not represented by counsel and the court agrees and sets the agreement aside. In that case I would have an upset ex-client husband who would be looking for a way to make himself or herself whole and oftentimes the only way he or she would sees is to sue the attorney for malpractice. Most attorneys who do this type of work, as a standard requirement of representation, require that both sides also be represented by experienced legal counsel.
Does A Prenuptial Agreement Mean The Parties Do Not Trust Each Other?
No. Usually both parties understand why one or both of the parties are pushing for a prenuptial agreement and it does not relate to trust but to protecting the parties in the event of a divorce. It can be very difficult to negotiate a prenuptial agreement; there can be a very emotional aspect to it that is not so much about trust as about whether the other party loves the other person, or whether he or she is putting his or her financial fortune in front of love and respect for the other party. There have also been situations where the attorney for the other party creates a difficult relationship and fosters a feeling of ill will by saying that the agreement being proposed is one sided or unfair and they ask their client to seriously consider whether the other person really wants to be married to them. Most attorneys do not represent their clients that way, but there have been situations where the attorney on the other side creates a very difficult emotional situation which almost jeopardized the relationship and almost caused the failure of the marriage to occur. A judicious legal approach is required.
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