Ensuring the Enforceability of a Prenuptial Agreement

Everyone who gets married typically brings something of value into the marriage, which is why considering a prenuptial agreement isn't such a bad idea.

By David J. Glass Updated: October 27, 2021Categories: Financial Issues, Legal Issues

How do you ensure the enforceability of a prenuptial agreement?

There are many couples who go to great lengths to work with their respective attorneys to prepare the stipulations in a prenuptial agreement. They may be ready to sign it once it is drafted, but many don’t know, or understand, the “rules” under the Uniform Premarital Act in his/her/their respective states. Knowing them and understanding them is key to making sure you can ensure the enforceability of a prenuptial agreement should you find yourself in a position to have to do so.

In California, for example, the “rules” under its prenuptial code (section 1615) are clear cut, and if not followed, can provide cause for one or the other party to assert that the contract is null and void. Remember: it is not just a matter of reviewing the stipulations you have asked for in your prenuptial agreement, it is also a matter of understanding the rules that allow your agreement to be enforceable. 

Below, I have listed six rules that must be followed in California’s Act. They are not too dissimilar in other states across the country. My first suggestion is that you compare the list below with your state’s Uniform Premarital Agreement Act.

Six Rules to Ensure the Enforceability of a Prenuptial Agreement

1. The seven-day waiting period: Seven full calendar days must pass between the date the prenuptial is presented to your fiancé or intended partner and the date the contract is signed/notarized. Also, be conservative: If the prenuptial agreement is materially updated during the review process, the clock starts ticking again from scratch and the waiting period has to start all over again. 
2. Fair and open financial disclosure of both parties: First, it doesn’t matter if one party makes more than the other or possesses more assets. What is important is that both parties fully understand what they may be giving up by separating property during the marriage. Case law over the past several years suggests that the level of disclosures required for a prenuptial agreement should mirror those required for a marital settlement agreement. Additionally, careful counsel will typically require the other party to execute a Waiver of Further Disclosures before signing the prenuptial agreement to ensure there is no question later that full and fair disclosure was reported. Such a waiver means that one party or both parties are acknowledging that they have disclosed all financial information and that since that disclosure no substantial changes have been made. Full and fair disclosure is mandatory. Should one party treat this “rule” unfairly or negligently, it could come back to haunt them and cost them dearly.
3. Both parties must be represented by separate attorneys: The only way to create peace of mind and eliminate the risk of unenforceability is to make sure each of you have separate counsel. Both attorneys must be licensed to practice law in his/her/their respective states and be in good standing with their state bar organizations. The court will never consider any argument where one party asserts that his/her/their partner/spouse was represented fairly if only one lawyer is involved in the agreement. Often the two lawyers will negotiate certain “deal points” in the premarital contract which takes the pressure off the parties signing the contract. When all is done and said, both signers should feel they had an advocate who was solely looking out for their interests. 
4. Ensure the attorney you choose specializes in prenuptial agreements. This is a very precise area of law, and you must be sure you are duly represented. Having your real estate attorney or the lawyer who helped you settle the damages in car accident lawsuit is not the right person. There are even some family law attorneys who do not take on prenuptial agreement “cases.” They refer them out to those whose practice is exclusively devoted to marital contracts. Referrals are always the best and if you don’t know anyone who can refer you, you can always call your county’s local bar association. They will immediately provide you with a few good attorneys who would have to be in good standing to garner referrals. One good question to always ask: how many prenuptial agreements have you drafted? If the answer is a few or a handful, you may want to continue your search. You want an experienced attorney and one who has kept up to date with any and all code section changes. A seasoned prenuptial attorney will know all the many intricacies of creating a prenuptial agreement; know how to enforce it, if necessary; and will likely make suggestions on what you should have included but didn’t (on your “laundry list”). 
5. Include a severability clause: In the event a prenuptial agreement is contested, it is imperative that you have a severability clause in place. If one of the parties violates one of the stipulations (gives the dog away without joint permission though you both agreed neither of you would do so without the consent of the other) it doesn’t mean the entire contract is null and void. 
6. Avoid simple “do-it-yourself” marital agreement kits or manuals. In an attempt to save money and time, many couples decide they can write up an agreement themselves or go online and find one they can revise to their liking. That is not a good idea. Don’t forget that having no legal representation when drafting and signing a marital contract can be disastrous, and likely impossible to enforce. You could also be made to spend a fortune just to get some of the items and property to which you believe you are entitled. 

I always recommend that couples spend the time and money needed to secure his/her/their future should the marriage dissolve. When you consider that even though the divorce rate has ostensibly declined over the past decade, it is still between 40 and 50-percent. That is roughly half of all couples who marry, also divorce. Here is something else to consider: everyone who gets married typically brings something of value into the marriage, whether it is a (now) rare baseball card collection, a classic music library, or a precious pet. Should the relationship fail you don’t want to regret not having safeguarded what you feel rightfully belongs to you — something you believe you deserve to take with you.