There are several ways a prenuptial agreement can be attacked and found invalid. A premarital agreement is unenforceable if a party against whom enforcement is sought proves either of the following: (1) consent was involuntary; (2) the agreement was unconscionable.
I have a client that was not represented by an attorney at the time she signed the agreement and needed an Italian translator. She is conversational in English but due to the legal terms used in the agreement should have had a translator provided. In fact, she did request that the documents be provided to her in Italian too—but was never provided to her.
The court will strongly scrutinize the facts on a case-by-case basis factors that the judge will review are if a party is not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. That the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations and could not have reasonably obtained adequate knowledge of that information.
The issue of whether an agreement is unconscionable is a decided as a matter of law by the court. The court must find on the record and or in writing all of the following: (1) party was represented by an independent legal counsel at the time of signing the agreement or after being advised to seek an attorney, expressly waived, in writing, representation. (2) party had less than 7 calendar days between the time that the party was first presented with the agreement and advised to seek representation and the time it was signed (3) if unrepresented, the party was fully informed of the terms of the agreement (4) agreement not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into an agreement (5) and any other factors the court deems relevant.
Independent legal counsel are recommended by the court in drafting a prenuptial agreement since the parties’ interests are often adverse. Due to the nature of the relations, there may be certain situations in which it is critical. For example, when one of the future spouses is considerably wealthier than the other, or when only spouse waives his or her rights to an elective share.
An agreement is unenforceable if not voluntary or the result of duress (Uniform Premarital And Marital Agreements Act, Section (9)(a)(1). Evidence of lack of capacity, duress, fraud, and undue influence as demonstrated by a number of factors are probative in proving involuntariness (In re Marriage of Bonds, 24 Cal.4th 1 (2000) Adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily.
A court may refuse to enforce a term of a premarital agreement if in the context of the agreement taken as a whole (1) a term was unconscionable at the time of signing; (2) enforcement of the term would result in substantial hardship for a party because of a material change in circumstances arising after the agreement was signed (Uniform Premarital and Marital Agreements Act, Section 9 (f))