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Sample motion to vacate postnuptial agreement in California.

Sample Motion to Vacate Postnuptial Agreement in California

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Sample Motion to Vacate Postnuptial Agreement in California.

This sample motion to vacate a postnuptial agreement in California can be filed in support of a request for order or notice of motion to request that the court vacate a postnuptial (postmarital) agreement on the several grounds including that,

  • (1) the moving party did not have independent legal counsel and/or did not properly waive that right;
  • (2) 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;
  • (3) the moving party did not execute the agreement voluntarily as their consent was obtained as a result of duress, fraud, or undue influence;
  • (4) 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, and
  • (5) the agreement is voidable as there is a presumption of undue influence based on a breach of the confidential relationship imposed by Family Code section 721(b) which states that “The confidential relationship between spouses imposes a duty of the highest good faith and fair dealing on each spouse, and neither may take any unfair advantage of the other.

The sample has been revised and updated in 2019, is 10 pages and includes,

  • Brief instructions,
  • Memorandum of points and authorities with citations to case law and statutory authority, and
  • Sample declaration. 

The author is a legal entrepreneur and retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and used this sample for many years.

Note that the author is NOT an attorney and no guarantee or warranty is provided.