Disclaimer: This blog does not constitute legal advice. If you have any questions about your individual situation, it’s best to seek the advice of an experienced legal professional.
Divorce doesn’t always need to be a long or complicated process. If both parties have agreed to mediation, the separation could be finalized within a matter of weeks. Having a prenuptial agreement should speed up the divorce as well, but there are a few things the two sides will need to consider before they head to mediation. The team from Divorce Options San Diego—the experts in San Diego divorce mediation who offer a comprehensive, resolution-based alternative to expensive, time-consuming divorce litigation—explains how divorce mediation works when couples have prenuptial agreements.
Understanding the Basics of a Prenuptial Agreement
Also known as a premarital agreement, a prenuptial agreement is a contract a couple signs before they get married. These agreements are legally binding, but they must contain very specific information. In most cases, the prenup is going to disclose each party’s assets, income, and debt. Once all that information has been written down, the couple will then come to an agreement on who gets certain assets if a divorce occurs. Signing a prenuptial agreement is usually a good option for those who have large assets, large debts, a private business, or children from a previous marriage.
Determining the Validity of a Prenup
For a prenuptial agreement to be valid, it must meet a few specific requirements. First, the agreement needs to be written down and signed by both parties. While verbal contracts are valid in other cases, those types of contracts won’t work for a premarital agreement. The parties must also be completely honest when they disclose all their financial information. Lying or omitting any type of assets or debts could immediately invalidate a prenuptial agreement. Finally, the signing of the paperwork must be witnessed, and the witness will need to sign the document as well.
Creating a Prenup in California
In California, the Uniform Premarital Agreement Act of 1986 (UPAA) is the law that governs prenups, and it lists specific requirements for a prenup to be valid. First, the basic rules of contract law apply: each party has to be mentally competent to provide consent, and there must be actual consent. The prenup isn’t valid if the consent given by either party results from fraud, coercion, or a mistake. If one party isn’t proficient in the use of English, the prenup must be translated into that party’s native language. The prenup also can’t be “unconscionable,” which means the two parties have unequal bargaining power. The agreement cannot disproportionately favor one party over the other.
UPAA also has several specific requirements that pertain to prenups:
Each party must include full financial disclosure, including complete information about his or her property and finances
Each party has to wait a minimum of 7 days after receiving the prenup before he or she signs it
Each party must fully understand what he or she signs, including full disclosure of the rights, terms, and conditions of the agreement
Each party must either have independent legal counsel or waive the right to independent counsel before signing the agreement
Altering the Agreement During Mediation
Remaining polite and courteous to your spouse is going to make this process much easier in the event the prenuptial agreement needs to be altered. After remaining married for years, you or your spouse might not fully agree with the prenuptial agreement, and you’re going to need your spouse’s consent if you want to make any changes. Luckily, prenuptial agreements can be altered as long as both parties agree. During mediation, the separating couple might want to throw out the prenuptial agreement entirely and start from scratch. This sometimes occurs when the couple has had children together or acquired large assets that are in both of their names.
Challenging a Prenuptial Agreement
Just because one side doesn’t agree with the prenup doesn’t necessarily mean mediation won’t work. The primary purpose of divorce mediation is to come to an agreement both parties are relatively happy with. To determine the validity of a prenuptial agreement, a judge will need to look over all the paperwork. Those agreements are sometimes deemed invalid if one party wasn’t completely honest or any illegal stipulations were added to the documents. If the prenuptial agreement is invalid, the separating couple can head back to mediation to see if a new agreement can be reached.
Whether you have a prenuptial agreement or not, mediation can be the right choice for you. Mediation is a divorce solution that’s focused on meeting the needs of everyone in the family. Couples looking for an alternative to the expense and animosity of traditional attorney-centered divorce should reach out to the experienced professionals at Divorce Options San Diego. We’re San Diego divorce mediators who will help you dissolve your marriage in a way that’s based on respect and mutual satisfaction. Give us a call today at (858) 281-2628 to learn more.