Brian J. Kramer, CFLS     (Ph) 424.228.4133 (Fax) 310.751.6613

Q:  Can spousal support be waived or modified through a prenuptial agreement?


A:  Under California law, the lesser-earning spouse is generally eligible for spousal support in the event of separation.  For marriages that are not “long-term” (generally defined as 10-year marriages in California) spousal support usually spans for one-half the length of the marriage and is computed upon numerous factors including the marital standard of living and the parties’ respective income streams.


Spousal support or alimony can be an onerous liability, especially in cases involving long-term marriages in which case it may be imposed for a lifetime.  Thus, the ability to avoid or reduce future spousal support exposure is often of utmost concern to people considering a prenuptial agreement.


Historically, waivers of spousal support were considered to be unenforceable in California.  But in 2000 the California Supreme Court re-examined California’s long-standing policy against such waivers of spousal support in the seminal case of In re Marriage of Pendleton & Fireman, 24 Cal.4th 39 (2000) . In that case, the Supreme Court found that when entered into voluntarily by people who are aware of the effect of the prenuptial agreement, a premarital waiver of spousal support does not offend contemporary public policy.


In response to the Pendleton decision, the California Legislature promulgated new regulations that limit when modifications or waivers of spousal support in prenuptial agreements may be upheld.  Family Code Section 1612(c) provides that any provision regarding spousal support, including a waiver, will be unenforceable if either party against whom enforcement is sought was:


 (1) unrepresented by independent counsel at the time the agreement was executed, or


(2) if the provision is unconscionable at the time enforcement is sought.


It is impossible to predict what circumstances might someday cause a Family Law judge to conclude that enforcing a spousal support waiver would be “unconscionable.”  While many family law attorneys assume that if, after a 10-year marriage, one party has substantial assets and the other party has no assets and is unemployed, enforcement of a spousal support waiver would likely be deemed to be unconscionable.


On the other hand, at the other extreme, most family law attorneys would say with equal confidence that if, after a one-year marriage, both parties have assets of equal value and comparable incomes, enforcement of a spousal support waiver would not be deemed to be unconscionable.  Between these two extremes, we can only speculate where a family law court may draw the line between “conscionability” and “unconscionability.”


Since Section 1612 of the Family Code was amended by the California legislature in 2002, there has been little case law giving guidance about the sort of circumstances which a family law court may likely find a waiver of spousal support to be “unconscionable.”  Until a developed body of case law emerges that addresses this important issue, it is impossible to predict under what circumstances a provision in a prenuptial agreement waiving spousal support is at risk of being struck down as being “unconscionable.”

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