Will A Waiver of Spousal Support Be Upheld In A Prenuptial Agreement? It Depends!

January 8, 2013, by Law Offices of James V. Sansone
By Law Offices of James V. Sansone on January 8, 2013 8:00 AM |

prenuptial-agreement.jpgA recent appellate court ruling had held that a waiver of spousal support contained in a 1985 prenuptial agreement was invalid and unenforceable as contrary to public policy at the time of the agreement's execution.

When Raymond and Roberta Melissa married in 1985, Raymond demanded that Roberta sign a prenuptial agreement. The agreement contained an express waiver of any entitlement to spousal support.

When Roberta filed a petition for dissolution 24 years later, the family court declined to enforce that provision, finding that it was contrary to public policy at the time the agreement was executed.

Raymond appealed, citing the California Supreme Court's reliance on "contemporary public policy" in its analysis of a similar provision in another case.

The court of appeal affirmed, holding that the family court properly deemed the 1985 waiver of spousal support to be invalid.

Former public policy has made clear that waivers of spousal support in prenuptial agreements were, at the time of the parties' marriage, contrary to public policy. The court acknowledged that public policy did later change. That change was recognized in the CA State Legislature's 2002 amendment of the statutory scheme to recognize the validity of premarital agreements waiving spousal support where the spouses are represented by independent counsel before execution of such waiver.

However, the Court found it well settled, that the validity and enforcement of a premarital agreement turns on the date of its execution. The Court's recent reliance on "contemporary public policy" did not dictate otherwise. The Court, in Pendleton, in upholding a 1991 premarital agreement waiving spousal support, recognized that the Legislature's 1986 adoption of the Uniform Premarital Agreement Act signaled a shift in public policy, a shift that was in effect when the Pendletons executed their prenuptial agreement in 1991 and that remained in effect when the Pendleton case came before the court in 2000. "Contemporary public policy," for purposes of Pendleton, predated the 1991 execution of the parties' agreement.

I have many people come in my office and ask if spousal support can be waived in a premarital agreement. My answer is always, maybe. If both spouses are represented by independent legal counsel before execution of the agreement, the agreement is fair at the time of execution, and at the time of the dissolution, it still remains fair to enforce the agreement. The big ticket item here is at the time of the dissolution, it must still remain fair to enforce the agreement. That is not necessarily something that can be dealt with when the agreement is drafted. As such, waiving spousal support, in my opinion, is a big "IF".

The Law Offices of James V. Sansone offers a full range of family law legal services including divorce, premarital agreements, enforcement of court orders, guardianships, and juvenile dependency defense. We are located in Santa Rosa, California and serve clients throughout Sonoma County, Mendocino County, and Lake County, including Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, and Kelseyville.