You can challenge a prenuptial agreement in California under several grounds listed in the Uniform Premarital Agreement Act (UPAA) and California Family Code §§1610-1617. Some of the most common ways to do this include showing lack of voluntary consent, evidence of fraud or material misrepresentation, unconscionability, the failure to provide clear, full financial disclosure, and mistakes involving document procedures, witnessing, or failing to follow required formalities. Here’s some more information on these challenges:
Lack of Voluntary Consent
A prenup can be challenged if it wasn’t willingly signed. This involves situations where one spouse was pressured, threatened, or unfairly pushed into agreeing – essentially, if true consent was missing. The law also allows a challenge if the agreement was signed without at least a seven-day period to review it before marriage.
Absence of Independent Legal Counsel or No Written Waiver
A spouse may challenge a prenup if they didn’t have a separate, independent attorney explain and review the agreement, unless they expressly signed a written waiver of the right to have their own legal representation.
Fraud or Material Misrepresentation
If one side lied, withheld critical information, or made major misstatements about assets, income, or debt, the prenup may not be enforceable. Agreements made based on partial or untrue facts can be invalidated.
Unconscionability at Signing
A judge can set a prenup aside if its terms are shockingly unfair (“unconscionable”) at the time of signing. This could mean that one spouse gave up all their rights to support, property, or financial security in a way that’s clearly not reasonable, to the extent that enforcing it would be unjust or against public policy.
Failure to Provide Full and Fair Financial Disclosure
If a spouse did not completely and honestly reveal their finances before the prenup was signed, the agreement can be challenged.
Procedural or Formal Mistakes
Challenging a prenup is also possible if basic steps in making any contract weren’t followed, such as missing signatures, no notary when required, or problems with witnesses.
Evidence Commonly Used to Challenge a Prenup
To challenge a prenup, you need evidence showing why the agreement should be invalidated. Here’s what this often includes:
- Proof of Coercion or Pressure: Emails, text messages, or witnesses who can testify that one party was threatened, rushed, or pressured to sign the agreement.
- Evidence of Inadequate Time to Review: Calendars, dated drafts, or attorney logs showing that the prenup was presented to one party less than seven days before the marriage or without adequate time to review.
- Financial Paperwork: Bank records, tax returns, real estate deeds, or retirement statements showing that critical financial assets or liabilities were hidden or never revealed before signing.
- Evidence of Lack of Legal Advice: Communications, fee statements, or affidavits revealing one spouse had no independent counsel or failed to sign a clear waiver when declining the right to separate legal advice.
- Unconscionability Expert Opinion: Declarations or testimony from legal and financial experts explaining that the terms were extremely unfair based on wealth, earning power, or the division of assets and debts at the time of signing.
Collecting and presenting these forms of evidence helps prove the prenup was not agreed to fairly or according to the law. If you have any questions or need help challenging a prenup or arguing that the prenup should withstand a challenge, our team can help. Reach out today to schedule a free consultation.