SPOUSAL SUPPORT

Waiver of spousal support

Table of Contents

Introduction3

Involuntary Agreement3

Independent Counsel or Waiver of Counsel4

Full Disclosure to Unrepresented Party5

Seven-Day Waiting Period5

No Fraud, Undue Influence, Etc6

Any Other Factor9

Unconscionability and Inadequate Disclosure10

Disclosure Requirements11

Violation of Public Policy12

Special Rules for Limitations on Support14

Amending a Premarital Agreement After Marriage15

Premarital Agreements Executed Prior to 200216

Common Law18

(1) Spousal support waivers not unenforceable per se18

(2) Spousal support waivers unenforceable when unconscionable23

Conclusion27

References29

Waiver of spousal support

Introduction

Premarital agreements are like parachutes. Younever know if they will work until you hit the ground. Although premarital agreements are favored under the law, a one-sided agreement is risky. Enforceability depends on compliance with the California Premarital Agreement Act (the “Act”), which allows parties to make a valid premarital agreement provided they follow the rules. For premarital agreements executed after January 1, 2002, the Act provides that a premarital agreement will not be enforceable if: (1) The agreement was not made voluntarily; (2) The agreement is unconscionable and the disclosure requirements of the Act were not met; or (3) The agreement violates public policy.

Involuntary Agreement

All premarital agreements executed after January 1, 2002, are deemed to have been executed involuntarily, unless the court finds that the party had independent legal counsel (or properly waived that right); waited at least seven days before signing the agreement; had legal capacity to enter into the agreement; and did not act under fraud, duress, or undue influence. (Fam. Code, § 1615, subd. (c).) Therefore, the party seeking to enforce the agreement bears the burden to prove all of these elements or the agreement will be invalidated.

Independent Counsel or Waiver of Counsel

The court must find that the party against whom enforcement is sought was represented by independent counsel or, after being advised to seek independent counsel, expressly waived such representation in a separate writing. (Id.) The separate writing requirement means that the waiver of counsel may not be contained in the premarital agreement. The requirement that a party have “independent” legal counsel signifies that his or her counsel must be free of conflicts of interest. If one party is paying both attorneys, it could suggest a lack on independent counsel.

The best practice is to give or loan funds to the party who cannot afford an attorney, and allow that party to make the payment directly to his or her attorney of choice. Another issue arises when a party suggests that the other party use a particular attorney. If a referral is given, it should be made to at least two attorneys to avoid the claim that the party was directed to use his or her fiancé's hand-picked attorney. Or, the unrepresented party can be directed to a list of certified family law specialists.

Full Disclosure to Unrepresented Party

If a party waives the right to counsel, the court must find that the party (a) was fully informed of the terms of the agreement and the rights and obligations he or she was relinquishing by signing the agreement; and (b) was proficient in the language in which the explanation of his ...