Is it Property of the Estate
Posted: Thu Feb 06, 2014 8:54 pm
To: cdcbaa@yahoogroups.com
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On a practical side, we attack these agreements in family court all the time. The facts and circumstances around the execution of a premarital agreement will be examined carefully before declaring it enforceable or unenforceable. I would be rather surprised if a Ch 7 Trustee argued it void as a matter of law.
Desiree Causey
714-375-6663
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> On Feb 6, 2014, at 7:20 PM, wrote:
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> I did a little bit of research on a similar issue recently and I did not see any legal requirement that a premarital agreement be notarized.
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> Family Code section 1615 sets out requirements for a premarital agreement to be enforceable. In general, if one spouse is seeking to invalidate the premarital agreement, they can prove that the agreement was unconscionable or involuntary, for example, by showing that they were not represented by an attorney, or they were not given full information about the spouse's assets prior to signing the agreement. But if both husband and wife agree that the agreement was executed voluntarily and was not unconscionable, I think it would be difficult (maybe not impossible, but difficult) for a Chapter 7 Trustee to argue that the premarital agreement should be void as a matter of law. Caveat: I read the family code sections on this, but I have not done any case law research regarding when/how a Chapter 7 Trustee can void a prenuptial agreement. Still, if the agreement was actually executed prior to marriage, and if both spouse's intend for the premarital agreement to be effective, it seems to me that you might have a good argument against the Trustee if he tries to go after the house.
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> Here is a link to the family code sections:
> h
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