Waiver Of Support In Premarital Agreements


Many family law practitioners when drafting premarital agreements advised against and stayed away from any attempt to limit, modify or otherwise interfere with rights to spousal support. The reluctance to enter into a contract on the issue of spousal support arose from prior California cases holding premarital agreements that attempted to waive or limit spousal support were void as against public policy, as well as the fact when California, in 1985, adopted the Uniform Premarital Agreement Act, it failed to adopt language which expressly stated that the parties to a premarital agreement could contract with respect to the modification or elimination of spousal support. Since the Uniform Act as amended was adopted, California’s Appellate Courts have not commented on the issue of spousal support contacts until the case of Pendelton v. Fireman decided March 26, 1998. In Pendelton v. Fireman, the parties were two wealthy, well-educated people represented by separate counsel who agreed that in the event the marriage ended in divorce that neither would seek spousal support from the other. After a four-year marriage, the wife sought substantial spousal support claiming that the waiver was void for violating California public policy.

The Appellate Court in upholding the waiver (reversing the trial court in this regard) noted that the prior law holding that such agreements were void as against public policy, was believed to encourage or facilitate divorce. Long after those cases were decided, California changed from a fault based system of divorce to a no-fault system and had changed from a State where the husband was given unilateral right to manage and control virtually all of the couples community property to joint management and control. The Appellate Court noted that when the legislature adopted the California Premarital Agreements Act, it did so with the understanding that “California case law would . . . prevail on the issue of spousal support in premarital agreements.” The Court took this as a green light to recognize “. . . the simple fact that premarital spousal support waivers and limitations no longer violate public policy.”

“The decision to marry is among the most personal and private choices that two people can make and there is something perverse about a system of laws that allows a prospective spouse to make premarital decisions controlling the disposition of all of the spouse’s property upon death — which may leave the surviving spouse without any form of continuing support — but prohibits premarital decisions controlling support obligations if the marriage ends in divorce.” The Court also looked at a Florida Supreme Court decision dating back almost 30 years that concluded the change in public policy towards divorce requires a change in the rule respecting antenuptual agreements settling alimony and property rights so that such agreements should no longer be held to be void as contrary to public policy.

The Court further embraced the rationale supporting the validity of premarital agreements citing the increase of divorce and second marriages ending in divorce, women entering the work force with an intent to remain there as professionals and executives, and marriage frequently occurring later rather than earlier thereby increasing the odds that both spouses have acquired substantial assets. Premarital agreements provide a couple the ability to protect existing assets, assume responsibility for existing debts, characterize after acquired property, allocate income earned, address income tax issues that will arise during marriage and in the event of dissolution or death and cover general testamentary issues as well as those that may exist if there are children from prior marriages.

“As the law is starting to recognize, premarital agreements may in fact encourage rather than discourage marriage. As more than one Court has noted, society’s current acceptance of cohabitation without marriage offers an attractive alternative to a wealthy man or woman who cannot marry without relinquishing the right or limit his or her spousal support obligations in the event of divorce. This reasoning suggests that the result we reach today does in fact preserve rather than defeat the sanctity of marriage.”

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