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Posted on December 1, 2015 in Alimony,Family Law,Prenuptial Agreement,Spousal Support

On one hand, prenuptial agreements (“prenups”) can be a smart decision for two adults who have taken the time to think about how they want to plan their future and ensure they each receive protections they agree upon. On the other hand, prenuptial agreements can be abused where there is an imbalance of power, lack of forthrightness, or sometimes feelings of love might just cause someone to sign a document without putting in the time and effort to really understand the document they are signing. Either way, California law is sensitive to the problems that can arise when two individuals attempt to draft a document that may have far reaching impacts in the sometimes very distant future. One of these issues is whether either party may completely waive their right to receive spousal support in the event the marriage is dissolved.

Historically, waivers of spousal support were unenforceable because they were contrary to public policy. However, more recently, California case law began to come around to the idea that waivers of spousal support were not automatically invalid. In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39, decided that under certain circumstances, parties could waive spousal support.

In 2002, California lawmakers enacted a law specifically stating that spousal support waivers in prenuptial agreements could be enforced, but the agreement had to be between two individuals represented by independent counsel and the agreement could not be “unconscionable at the time of enforcement of the agreement.” (That law affected the enforceability of agreements drafted after 1/1/2002.)

Keep in mind: the enforceability of the agreement to waive spousal support is uncertain at the time the agreement is signed. It will depend on whether the agreement is unconscionable at the time of enforcement, i.e., at the time of divorce! That raises a follow-up question: what will be considered unconscionable when you go to enforce your agreement? There is no hard and fast rule and the analysis will be fact intensive and consider both parties’ financial means. At the very least, be aware that the enforceability of the spousal support waiver is uncertain, and will depend on future, presently unknown circumstances. Should you have any questions about drafting or enforcing a prenuptial agreement, call our San Diego family law attorney from Law Offices of Scott Family Law.