Couples who are willing to start off their marriage with a prenuptial agreement are not people who expect to be divorced someday. Often they’re not even thinking that a prenuptial agreement helps them plan for the worst. This may surprise you, but many couples see entering into a prenuptial agreement as a gesture of love—a separation of finances from affection—a way of saying, “I choose you for you, and not for any financial gain or advantage.”
At times, I have had couples come to me to create a prenuptial agreement with such open hearts and pure intentions that one or both parties have been eager to be generous as a gesture of pure intent. For example, the lesser-earning party may be willing to sign away the right to collect spousal support should the marriage end. I have seen this in situations where both parties earn a similar income and in situations where there is a great disparity in income and separate assets and property.
I typically try to dissuade couples from including language that eliminates or limits the obligation of spousal support. The reason for this is that we really never know how a court will rule with regard to this issue, no matter how carefully we craft the agreement. The California divorce of Peter and Debra Last is one that illustrates why most attorneys are very hesitant to include such language.
Instead of Spousal Support, They Agreed to Anniversary Payments
When Peter and Debra married in 2002, they entered into a prenuptial agreement wherein Debra completely waived her right to spousal support should the marriage end. The agreement included a deal that many of us would find interesting. The equity Peter had in his separate property was made community property immediately, and then there was a payment schedule of sorts. Peter agreed to give Debra specified amounts of money as her separate property: $16,000 within three days of the marriage; $3,500 at the ends of years 7, 8, 9, and 10; and $4,500 at the ends of years 11, 12, 13, 14, and 15…for a total of $52,500. Quite the wedding and anniversary gifts!
Debra Asked for Spousal Support Anyway
After 19 years of marriage, Debra filed for divorce and requested temporary spousal support, which she was granted. Even though Debra had waived her right to spousal support when they married, her attorney argued that the court should disregard that part of the prenuptial agreement because there was such a dramatic disparity in the parties’ incomes, then and now. California divorce courts strive to aid both parties in maintaining the status quo in terms of living conditions and standards until a divorce is final—and in this case, that meant ordering Peter to pay Debra $8,511 a month.
Peter Pushed Back
Not surprisingly, Peter fought back. After all, he had what he assumed was an ironclad legal document, and he had paid Debra on their anniversaries as they had agreed. His position was that—by default—their prenuptial agreement should be considered inherently valid and enforceable. But it’s not that simple. The law rarely is.
Peter’s attorney also argued that if Peter paid Debra $8,511 a month per the temporary order, and later the court determined Debra was not entitled to spousal support, it would be impossible for Peter to recover that money from Debra. The court determined that Debra would be able to repay Peter if she were required to, so the temporary order stood.
The Prenuptial Agreement Was Not Assumed to be Enforceable
To make a long and complex story short, the court drew upon several cases to determine that a prenuptial agreement should be considered unenforceable unless certain legal standards are met. The burden of proof was on Peter to show that the agreement was enforceable, not on Debra to show that it wasn’t. Every American knows that when it comes to being accused of a crime, you are innocent until proven guilty—not the other way around. The same basic idea applies to a prenuptial agreement that is challenged by one party: it may well be considered unenforceable until proven enforceable. A prenuptial agreement that waives spousal support will always receive more scrutiny and therefore there will be an increased likelihood that a court will decide it’s unenforceable.
As of this writing, the divorce between Peter and Debra Last has not yet been finalized, but the temporary spousal support order was held up in Debra’s favor.
The Bottom Line
You’re free to enter into a prenuptial agreement that waives or limits spousal support, but you can’t rely on that spousal support clause to hold up. The case of Peter and Debra Last is just one of several California divorce cases that really encourage attorneys not to include such a clause because we just never know what a judge will do. What I tell my clients is yes, you can agree to limit spousal support, but you can’t depend on that agreement to protect your future liability for support.
Again, no one gets married expecting to get divorced, and no one enters into a prenuptial agreement expecting to have to fight about it later. You may feel compelled to waive your right to spousal support as a sincere expression of your love and faith in your upcoming marriage, but think twice. I strongly recommend you hire an attorney who is very well versed in California divorce law and who can give you solid advice about how to craft the agreement.
And should you find yourself in the unfortunate position of getting divorced, please consider either hiring a divorce mediator or a collaborative divorce team to help you navigate the situation. If you have a prenuptial agreement, it may be challenged…and even if it isn’t, you’ll still need compassionate legal support as you end that chapter of your life.
Explore your no-court divorce options and the prenuptial process in Santa Rosa and Sonoma County and schedule a confidential consultation with divorce lawyer Jeanne Browne. With more than 30 years of experience helping couples divorce without court through mediation and collaborative practice, she will give you compassionate legal advice on your issues related to family law, divorce, and prenuptial/postnuptial agreements. Click here to schedule a meeting.
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