Most prenuptial agreements include a provision in which the future bride and groom agreed to waive their statutory right to receive spousal support from the other in case of a separation or divorce. Sometimes, instead of a waiver, the parties will agree to limit the amount and duration of the spousal support payments.
In January 2013, the California Court of Appeals held for the first time in In re Marriage of Facter, 212 Cal.App.4th 967, that the spousal support waiver provision in the Facters’ premarital agreement is unenforceable because it is unconscionable. This holding set a dangerous precedent for California court to invalidate similar support provisions.
In Facter, at the time the Agreement was executed, wife was a recently unemployed high school graduate single mother of two and husband was an accomplished attorney who earned about half a million dollars a year. The court found that the waiver is unconscionable because there was a great disparity in the parties’ “respective incomes and assets at the time they entered into the Agreement” and the situation suggested “a significant inequality of bargaining power.” The court further found that the parties’ financial circumstances at the time of the enforcement would also make the enforcement of the waiver “unjust.” In particular, the court pointed out that husband has amassed 10 millions dollars in assets and earns one million dollars per year while wife remained unemployed and has accumulated no separate asset during the marriage. If the court was to enforce the support waiver, wife would never come close to replicating the marital standard of living.
Based upon the Facter holding, it appears that additional attention must be used by the drafter of any spousal support waiver provision to ensure that the waiver, at the time the agreement is executed, does not fall within the parameters of the Facter holding. (On the other hand, it would be almost impossible for the drafter to speculate the parties’ financial situation at the time of separation). Therefore, individuals who are looking to obtain a prenuptial agreement containing a spousal support waiver must take the time to find an attorney who is knowledgeable and experienced with prenuptial agreements. The drafting attorney should be up to date with all relevant case law holdings, understands their implications and knows what extra steps to take to ensure that the agreement complies with current law.
We are Torrance’s premier family law lawyer and we can help draft your prenuptial agreement. Please direct all inquiries to our office at (310) 212-7109.
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