The date of a premarital agreement (commonly referred to as a “prenup”) will determine the law applicable to its enforcement and validity. The law related to the validity and enforcement of premarital agreements has changed substantially throughout the past 30 years. Divorce attorneys are frequently asked the question:
“Is my prenup valid?”
Any premarital agreement executed after January 1, 1986 is subject to the Uniform Premarital Agreement Act (UPAA). However, prior law continues to govern any pre-1986 premarital agreements. In 2002, portions of the UPAA were significantly amended. Again, those changes do not apply retroactively so the 1986 version of the UPAA applies to all premarital agreements executed between January 1, 1986 and January 1, 2002. So, considering all of these timelines, the following is a list of differences to examine:
Premarital Agreement Executed Between 1/1/1986 and 1/1/2002
- Relaxed statutory disclosure standards – Spouses are held to a lower duty to make a fair, reasonable, and full disclosure regarding property or financial obligations
- Burden of proof – The party claiming the premarital agreement is unenforceable bears the burden of proof on that contention.
- Representation of counsel – No requirement that party against whom enforcement is sought was represented by an attorney at the time the premarital agreement was executed.
- Waiting period – No mandatory waiting period between presentation of premarital agreement to a party and the date it is signed.
- Spousal Support Waiver – Relaxed statutory requirements applied to spousal support waiver.
Premarital Agreement Executed Between 1/1/2002 and the present
- Heightened statutory disclosure standards
- Burden of proof – Burden shifts to party attempting to enforce the premarital agreement to prove it was executed voluntarily.
- Representation of Counsel – Party against whom enforcement is sought must have been represented by independent counsel or signed an express waiver of representation in a separate document.
- Waiting period – There must be at least seven days between the date a party is first presented with the premarital agreement and the date it is signed.
- Spousal Support Waiver – A spousal support waiver in a premarital agreement must meet strict statutory standards in order to be enforceable.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.