§17.4 C. Waive or Limit Spousal Support
Under legislation that first became operative January 1, 2002, any provision in a premarital agreement regarding spousal support (Fam C §1612(c)):
is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement.
This limitation applies not only to a waiver of spousal support, but to any provision about spousal support in a premarital agreement. An agreement that is unconscionable at the time it is sought to be enforced does not become enforceable solely because the party against whom enforcement is sought had independent counsel when it was signed. Fam C §1612(c). Family Code §1612(c) is not retroactive, however, to agreements entered into before its 2002 operative date. Marriage of Howell (2011) 195 CA4th 1062, 1077. See Marriage of Hill & Dittmer (2011) 202 CA4th 1046 (citing Howell, with approval, that Fam C §1612(c) is not retroactive).
no public policy is violated by permitting enforcement of a waiver of spousal support executed by intelligent, well-educated persons, each of whom appears to be self-sufficient in property and earning ability, and both of whom have the advice of counsel … at the time they execute the waiver.
Before Pendleton & Fireman, premarital spousal support waivers had been held unenforceable on the grounds that they promoted divorce and thus violated the public policy in favor of preserving marriages. See, e.g., Marriage of Higgason (1973) 10 C3d 476, disapproved on other grounds in Marriage of Dawley (1976) 17 C3d 342, 352. And because the law applicable to the validity and enforcement of premarital agreements turns on the date of the agreement’s execution, an appellate court has held that a provision purporting to waive spousal support in an agreement executed in 1985 when the former law was in effect is invalid. Marriage of Melissa (2012) 212 CA4th 598, 611. But see Marriage of Facter (2013) 212 CA4th 967 (under Pendleton & Fireman, spousal support waivers not per se invalid, but the waiver in Facter‘s 1994 agreement was unconscionable; remainder of agreement severable).
NOTE: The Facter court stated that Pendleton & Fireman “did not set a precise standard for when a spousal waiver is deemed unconscionable.” 212 CA4th at 982. The Facter court examined the wife’s education and assets, as well as her earning capacity when she entered into the agreement and compared them to the husband’s education, assets, and earning capacity, and determined there was “a great disparity in the parties’ respective incomes and assets at the time they entered into the Agreement,” resulting in a “significant inequality of bargaining power.” 212 CA4th at 983. The court also cited Pendleton & Firemanin examining the circumstances existing at the time of enforcement that might make enforcement unjust. Facter relied on the fact that the wife devoted her efforts to child rearing and maintaining the family home, while the husband continued to successfully pursue a financially rewarding career. The evidence supported the conclusion that without reasonable spousal support, the wife would never come close to replicating the marital standard of living. Accordingly, under Facter, in determining whether a spousal support limitation entered into between 1985 and 2002 is permissible, a court should evaluate whether the limitation was unconscionable at both the time of execution of the agreement and at the time of enforcement.
The Pendleton & Fireman decision left open “whether circumstances existing at the time enforcement … is sought might make enforcement unjust” (24 C4th at 53) and noted that the legislature could, if it chose, limit the right to premarital waiver of support or specify the circumstances in which enforcement should be denied, or both (24 C4th at 54 n12). The legislature did so in Fam C §1612(c) by making it clear that parties must be represented by independent counsel for a spousal support limitation to be valid, but that having independent counsel does not automatically make that limitation valid.
Spousal support was awarded in accordance with the parties’ premarital agreement in Marriage of Carpenter (2002) 100 CA4th 424 (5 years of support after 2-year marriage). The court declined to rule on whether support was modifiable or whether it would terminate sooner on the death of either party or on the wife’s remarriage on the ground that those issues were not ripe for decision.