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If Arnold Schwarzenegger has a prenuptial agreement, is it enforceable?

In this Slate article, Brian Bix of the University of Minnesota Law School writes "Arnold Schwarzenegger's marriage to Maria Shriver seems to be over after news broke that he fathered a child out of wedlock more than a decade ago. The couple are likely to have a prenuptial agreement, according to TMZ, but they've "been together so long the effectiveness of it is problematic." If enough time passes, can a prenup expire?" The article is correct that a pre-nuptial agremeent may make provision that it expires after a certain number of years. As with any condition subsequent the Court still has the power to consider whether the clause might be invalid if it it tends to promote divorce. However, in the absence of such a provision, the passage of time does not invalidate a prenup. Nor does the passage of time make it more likely that a court will invalidate the prenup, as the article suggests. In California, there are very few cases where a prenup has been held invalid where the formalities of executing a prenup have been observed. See my article on the formalities in California.   The slate articles statement "Keep in mind that very little is certain with premarital agreements, because American judges have historically looked for reasons to ignore them." is misleading, if it gives the impression that California Judges are now ready to ignore prenups where the formalities of their creation have been observed. Just look at the facts of the Barry Bond case. In Re Marriage of Bonds (2000) 24 Cal. 4th shows that in California there is a high burden to prove duress or undue influence to invaldiate a prenup. In Bonds, the Court found that there was no confidential relationship between  parties contemplating marriage. They also stated that the overall fairness or unfairness of the agreement was not relevant to the test of its validity.  They found that the agreement was voluntary in spite of the fact that Bond’s fiancé was unrepresented, was presented with the agreement a day before the marriage, Swedish was her main language and it was unclear whether there had been full disclosure. In December 1987, Barry Bonds, the baseball player, told his fiancé, Sun, a Swedish waitress and make-up artist who was unemployed at the time, that he wanted a prenuptial agreement prior to the planned wedding that was scheduled to take place the following year. The couple were living in Phoenix Arizona and planned to fly out to Vegas on February 5, 1988 and get married the day after. On the day of the flight, Barry and Sun met at his attorney’s office where she was presented for the first time with a prenuptial agreement to sign.  According to evidence at trial she was advised to consult an independent counsel but declined because she had no assets.  The agreement also referred to a schedule of the party’s property and assets but there was no such schedule attached. The Supreme Court of California upheld the trial court’s finding that the agreement was voluntary:“The trial court determined that there had been no coercion. It declared that Sun had not been subjected to any threats, that she had not been forced to sign the agreement, and that she never expressed any reluctance to sign the agreement. It  found that the temporal proximity of the wedding to the signing of the agreement was not coercive, because under the particular circumstances of the case, including the small number of guests and the informality of the wedding arrangements, little embarrassment would have followed from postponement of the wedding. It found that the presentation of the agreement did not come as a surprise to Sun, noting that she was aware of Barry's desire to "protect his present property and future earnings," and that she had been aware for at least a week before the parties signed the formal premarital agreement that one was planned.” 

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