Frequently Asked Question:
Can spousal support be
modified or waived
through a prenuptial
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Frequently Asked Questions
Can spousal support be waived or limited
through a prenuptial agreement?
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 would typically span for
one-half the length of the marriage and is computed upon numerous statutory factors
proscribed under the Family Code including the marital standard of living and the
parties' respective income streams.
Spousal support or alimony can be an extremely 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. In 2000, however, the
California Supreme Court re-examined California's prior policy against waivers of
spousal support in 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, 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
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." In one recent decision, In re Marriage of Facter (2013) 212
Cal.App.4th 967 the court found that a waiver of spousal support was not invalid as a
matter of law but was unconscionable as applied currently. However, until a more
developed body of case law emerges that addresses this critical 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."