Avoid Nullifying Your Prenup, Avoid These Four Mistakes
Prenuptial agreements are becoming more common in marriages in the U.S. Although some soon-to-be-wed couples see prenups as a sign that the marriage is doomed before it begins, the document serves only as a safeguard for the interests of the couple in the chance that the marriage does indeed end. However, as with any legal document, a prenup can be voided if certain circumstances or inconsistencies arise. If you are looking to make sure that your prenup is upheld in the event that your marriage ends, be sure to avoid the following common mistakes.
A Falsified Agreement
It isn’t uncommon for one of the soon-to-be-spouses to falsify or undermine the value of a certain asset. It is also possible that he/she could fail to disclose the existence of an asset as well. Proving such an allegation can be difficult without the assistance of an attorney with considerable experience in this area of divorce law. If it can be proven that asset value or any other information on the agreement is incorrect, the form may be nullified.
The Agreement Was Not Formed Under Sound Mind
As with any legally binding agreement, a prenup must be formulated with both parties being of sound mind and/or mental capacity. For example, if it can be determined that one of the future spouses was intoxicated when the agreement was formed and was unaware of what said agreement stipulated, the form may be dismissed. The same goes with coercion. Proving that one of the parties was not of sound mind can be difficult, but it is possible.
Legal Representatives Were Absent At The Signing
When entering into any form of legal agreement, it is strongly advised to have your attorney present. In most states, this is required. The attorney representing you will review the agreement. This is done in order to catch any irregularities, illegalities, or to question the other party regarding the value of assets identified in the agreement.
The Agreement Cannot Be Lopsided
A judge overseeing a divorce in which a prenup has become the focal point of the proceeding may find one or several factors listed that can be grounds for nullifying the agreement. One regards child support. If one party has stipulated that child support will not be provided in the event of a divorce, the prenup may be nullified since state laws govern the provision of child support. Spousal support, however, varies according to state. Other stipulations, such as most or all assets being awarded to one party, can also result in a prenup being nullified.
Ensure that your prenuptial agreement meets all legal guidelines by working with a divorce attorney from the law firm of Fischer & Van Thiel, LLP, in San Diego. Contact one of our attorneys today at 858.935.6211.
Mike's Top FAQs About Family Law401K plans and divorce
401K plans and divorce
If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?
It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely. Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.
A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid. Generally, an agreement such as the MSA is favored. Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.
Can I get child support in California if I am not getting a divorce?
I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.
Can I move out with my daughter before the divorce in California?
My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.
Question: Is there a statute of limitations on owed child support?
An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.
Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.
If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.
Is the opinion of the child ever taken into consideration in a divorce?
Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.