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Under the Family Code, the lesser-earning spouse is generally
eligible for post-separation spousal support. For marriages that
are not “long-term” (generally defined as less than
10-years) spousal support usually spans for one-half the length
of the marriage and is computed upon numerous factors including
the standard of living achieved during the marriage 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. Indeed, in California alone billions
of dollars are paid out in alimony payments each year. 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 reexamined California’s long-standing policy against
such 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 decision, the California Legislature
promulgated new regulations that limit when modifications or
waivers of spousal support in prenuptial agreements may be upheld.
Section 1612 (c) of the Family
Code now 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
we can surmise with a high degree of certainty that if, after
a 10-year marriage, one party is worth one billion dollars and
the other party has no assets is unemployed, and is completely
disabled, enforcement of a spousal support waiver would likely
be deemed to be unconscionable. On the other hand, at the other
extreme, we can 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 in a prenuptial
agreement would not be deemed to be unconscionable. Between these
two extremes, we can only speculate where a Family Law judge
might draw the line between "conscionability" and "unconscionability." Unfortunately, since Section 1612 of the Family Code was amended
by the California legislature in 2002, there has been little
case law that addresses
under what circumstances a Family Law judge is likely to find
a waiver of spousal support to be “unconscionable.” Until
a more developed body of case law emerges that addresses this
important issue, it is impossible to predict under what sort
of circumstances a provision in a prenuptial agreement dealing
with (or waiving) spousal support is at risk of being struck
down on the grounds that it is “unconscionable.”
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