Some couples sign premarital agreements that include terms they know aren’t enforceable.  They do this because they wish to memorialize agreements in writing, whether or not California courts will uphold those agreements.

Other couples care mostly about protecting assets in case of a future breakup, and so enforcement is a top priority.

Either way, couples should consider the three prenup enforcement basics.  First, both parties absolutely must be represented by an attorney (even if one of the parties is an attorney themselves).  The case law has been quite clear on this score: when one party doesn’t know what they’re getting into, the prenup can be overturned.  Don’t risk it.  Get counsel.

Second, give the process time.  You must wait 7 days between delivering the final draft of your agreement to your fiancé, and the signing of that that draft.  Also, it’s best to begin negotiations before the wedding invitations go out.

Third, full disclosure of your financial picture is vital.  When in doubt, over disclose.  Each of you needs to know what you’re getting into if you want your agreement to be fair and enforceable.

— Erik W. Newton

Category: Premartial Agreements.