Not necessarily. While no attorney can guarantee the enforceability of a prenuptial agreement (aka premarital agreement), it is usually changes in the law or the circumstances that might cause a prenuptial agreement to be ruled invalid, void voidable, or unenforceable based on factors such as failure to disclose, fraud, duress, unconscionability, or mistake. While changes in the law cannot be predicted, avoiding application of factors such as fraud, duress, failure to adequately disclose assets, or entering into the agreement resulting from a mistake, can be avoided by both parties being represented by separate counsel in the transaction. This includes an attorney who drafts the prenuptial agreement and another attorney, hired by the other party, to review the agreement and explain its terms and the ramifications of its terms to the fiancée.
Possible reasons a prenuptial agreement may not be enforced:
1. One or more of the parties does not live in California at time of divorce or death, and the laws of the other state or country do not recognize premarital agreements.
2. A spousal support limitation or waiver may not be enforceable if it is deemed unconscionable at the time of the divorce.
3. California law changes.
4. Parties enter into conflicting agreement in other states or countries.
5. Party amends the agreement after marriage.
6. Parties fail to keep a signed original of the agreement.
7. The other party establishes that he or she was forced into signing the agreement or that he or she did not know what he or she signing.
8. One or both parties failed to perform all terms and conditions of the prenuptial agreement on his or her part to be performed.
9. The court finds that the parties were in a “confidential relationship” under California law and/or owed fiduciary duties to each other at the time the premarital agreement was made, and one of the parties breached that duty.
10. The court finds that the other party was not adequately represented by a competent and an independent attorney.
11. The California premarital agreement statute was not followed.
12. The party against whom enforcement is sought did not have sufficient time to negotiate the agreement or obtain independent counsel.
13. The agreement is signed under duress.
14. There was a failure to provide a proper disclosure of assets, debts income, expenses, and opportunities before the agreement was signed, or a failure to properly waive those obligations.
15. The court finds that the agreement is promotive of divorce.
16. Changes to the law occur after the premarital agreement was made, which make the agreement unenforceable.
17. Putting title to property in joint names or the other party’s name (real estate, vehicles, or life insurance).
18. Drafting an estate plan that is inconsistent with the premarital agreement.