Spousal support limitations and waivers are authorized under the California Premarital Agreement Act (CPAA), and in 2001, the state legislature amended the CPAA with regard to spousal support waivers in prenuptial agreements. The amendment stated, “Any provision in a premarital agreement regarding spousal support, including, but not limited to a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provisions is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement.” The family courts themselves were left to determine what made the waiver “unconscionable.”
However, recently under Marriage of Facter, the courts now have guidance as to what makes a waiver of spousal support in a premarital agreement “unconscionable.” At the time of divorce or legal separation of two spouses that have entered into a premarital agreement that includes a spousal support waiver, the court will evaluate each waiver on a case by case basis to determine if that waiver is unconscionable. The court will look to see if there is a significant disparity between the two spouse’s assets and incomes at the time of divorce.
Waiving Spousal Support
If the spouse that waives spousal support in the premarital agreement has significantly less assets and earns significantly less than the non-waiving spouse, the court may determine that the waiver is unconscionable at the time of divorce.
Additionally, if a judge determines that absent the waiver, it would be unfair to enforce the waiver compared to what the spouse would have received in support (meaning that it is unfair for the waiving spouse to receive $0 versus what he or she would have potentially received in spousal support), the court may determine that the waiver is unconscionable at the time of divorce.
Therefore, if you have a premarital agreement that includes a spousal support waiver and plan on filing for divorce or legal separation, it is important that you speak with the experienced spousal support family law attorneys at Wallin & Klarich to advise you of your options.
Regardless if you are the spouse who has waived support or not, you need to know how the waiver will affect the outcome of divorce or legal separation. We have been practicing family law for over 30 years and have a reliable legal team you can count on. We are attentive to our client’s needs and circumstances. Call us today at 1-888-749-7428. Wallin and Klarich has offices in San Diego, San Bernardino, Riverside, Los Angeles and Orange Counties and can help you now. We will be there when you call.
