Getting a Divorce With a Prenup: How It Works

Navigating a divorce can be complex, but having a prenuptial agreement can streamline the process.

Understanding how a prenup can protect your interests is crucial, and at Cyrus Pacific Law, we are here to help you every step of the way. Here’s the general process you can expect when getting a divorce with a prenup in California and some important considerations that could affect the outcome.

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The Role of a Prenup in Divorce Proceedings

A prenuptial agreement, commonly known as a prenup, is a legal contract signed before marriage that outlines the division of assets, debts, and other financial matters in the event of a divorce. Here’s how the prenup comes into play during divorce proceedings in California.

1. Filing for Divorce

The divorce process begins when one spouse (the petitioner) files a Petition for Dissolution of Marriage with the California Superior Court. At this point, the petitioner should mention the existence of a prenuptial agreement. The petitioner then serves the divorce papers and a copy of the prenuptial agreement to the other spouse (the respondent).

2. Disclosure and Submission

Both parties must disclose their financial information, including assets, debts, income, and expenses. This ensures transparency and allows the court to assess the prenuptial agreement against current financial circumstances. The parties must also submit the prenuptial agreement to the court for review. California Family Code Section 1615 outlines the requirements for enforcing a prenup, ensuring it was signed voluntarily, with fair disclosure, and is not unconscionable.

3. Court Review

The court examines whether both parties signed the prenup voluntarily and without coercion. Any evidence of duress or undue influence can render the agreement invalid. The court reviews the financial disclosures made at the time of signing the prenup to ensure there was full and fair disclosure of each party’s financial situation. The agreement must be fair and not heavily favor one party. Additionally, both parties should have had independent legal counsel when signing the prenup. This helps demonstrate that both parties understood the terms and implications of the agreement.

4. Enforcing the Prenup

If the prenup is deemed valid, the court will enforce its terms regarding the division of assets and debts. Separate property will remain with the original owner, and marital property will be divided as per the agreement. The court will also enforce any spousal support provisions in the prenup, provided they are fair and reasonable. However, keep in mind that California courts have the authority to modify spousal support terms if they find them unjust.

5. Finalizing the Divorce

Once all aspects of the prenuptial agreement are reviewed and enforced, the court issues a Judgment of Dissolution, officially ending the marriage and implementing the terms outlined in the prenup.

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Clauses That Can Affect the Process

Various clauses within a prenuptial agreement can influence how it is enforced during a divorce. This includes things like:

1. Sunset clauses. A sunset clause sets an expiration date for the prenuptial agreement, after which it is no longer valid. If your prenup includes a sunset clause and you file for divorce after the expiration date, the agreement may not be enforceable.
2. Spousal support waivers. A clause that waives the right to spousal support can be included in a prenup. However, the court will scrutinize these waivers to ensure they are fair and do not leave one spouse in financial hardship.
3. Debt responsibility clauses. These clauses outline how debts will be handled. The court will enforce these clauses if they are clear and both parties had full knowledge of each other’s debts at the time of signing.

This is why it’s important to work with an attorney when creating a prenup. Some clauses that may be common in other jurisdictions may not be even allowed in California. Additionally, similar clauses may be enforced differently depending on your unique circumstances.

Have Questions About Making a Prenup? Cyrus Pacific Law Can Help

A divorce with prenup involves the court’s review and enforcement of the prenuptial agreement according to California law. Ensuring that the prenup was signed voluntarily, with full disclosure, and is fair, will help facilitate a smoother divorce process. So, consulting with an experienced California prenup attorney is crucial to protect your rights and ensure the prenup is enforced correctly. If you have questions about a potential prenup, reach out to us at (424) 626-2939.