• Archives

  • Blog Stats

    • 666,298 hits
  • Categories

Motion to vacate a California prenuptial agreement

A motion to vacate a California prenuptial agreement is the topic of this blog post.

A motion to vacate a California prenuptial agreement can be filed by any party that wants to request that the court vacate a California prenuptial agreement and declare it invalid and unenforceable.   The technical name for a prenuptial agreement is a premarital agreement.

There are very strict requirements that must be met for a California prenuptial agreement to be enforceable. Therefore filing a motion to vacate a California prenuptial agreement can make sense if you can show that the agreement did not meet the strict requirements or one of several other grounds.

Grounds for filing a motion to vacate a California prenuptial agreement.

There are several grounds which can be used by someone seeking to invalidate a California prenuptial agreement including that,

The moving party did not have independent legal counsel and/or did not properly waive that right;

The moving party did not have at least seven days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed;

The moving party was not fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written;

The moving party did not execute the agreement voluntarily as their consent was obtained as a result of duress, fraud, or undue influence, and

The agreement was unconscionable when it was executed and, before execution of the agreement, the moving party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Family Code section 1615 states that,

“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:

(1) That party did not execute the agreement voluntarily.

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.

(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:

(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.

(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

(5) Any other factors the court deems relevant.”

Any prenuptial agreement that was signed after January 1, 2002 is deemed to have been executed involuntarily unless the court finds that the party had independent legal counsel (or properly waived that right), waited at least seven days before signing the agreement, had legal capacity to enter into the agreement, and did not act under fraud, duress, or undue influence. Therefore, the party seeking to enforce the agreement bears the burden to prove all of these elements or the agreement will be invalidated. The court must find that the party did not act under duress, fraud, or undue influence, and that the parties had the capacity to enter into the agreement.

Inequality of bargaining power between the parties is another possible ground.

An inequality of bargaining power can be shown by the relative age and sophistication of the parties. A California appeals court has also considered a disparity in the parties’ income and their respective assets at the time they entered into a premarital agreement as an indication of an inequality of bargaining power.

Sample motion to vacate a California prenuptial agreement for sale.

Attorneys or parties in California that would like to view a portion of a 12 page sample points and authorities in support of a request for order or notice of motion to vacate a California prenuptial agreement containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.

Experienced virtual paralegal available for hire.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Advertisements

What is your opinion?

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: