Q. Before I married we signed a prenup that says I waived any right to spousal support. Is this valid?
Clarissa, Carmel, CA
Maybe yes, maybe no. Sections 1612 and 1615 of the California Family Code impose important limitations on spousal support waivers effective 1/1/02.
Spousal support waivers absolutely require that the party waiving the right
was represented by independent legal counsel at the time the agreement
was entered into. Family Code section 1612(c).
If a lawyer has not advised the party and signed off on the agreement,
the waiver is unenforceable.
Even if a party was in indeed represented by independent counsel who advised the client and approved the prenup, the spousal support waiver will not operate "if the provision regarding spousal support is unconscionable at the time of enforcement." Family Code section 1612(c). Time of enforcement means when a party attempts to force the other party to adhere to the terms of the agreement, or is resisting a support request in divorce court.
Creative attorneys anticipate these potential bars to enforcement by carefully drafting the language of the prenuptial agreement, and by creating various scenarios within the support waiver. For instance, a straight waiver of spousal support is much less likely to be enforced than a conditional waiver of support. A conditional waiver might contain language that precludes the waiver if the party seeking support is gravely ill, unable to work, or receiving welfare benefits.
Lawyers drafting premarital agreements tend to charge moderate minimum fees because of the potential attorney malpractice exposure years down the road. Many attorneys won't handle them at all, or refuse to recommend that a party ever waive support and so they will not execute the agreement.
There are a number of other restrictions which must be overcome before a premarital agreement can be enforced. One is that at least seven calendar days must have passed between the date that a party was first presented with the agreement and then later signed it.
While you may be able to accomplish what both parties say they want are are willing to do before marriage in a prenup, you must retain legal counsel who is experienced in this area of the law or things may turn out differently than you expect down the road.
Once a wedding date is set, the earlier you get the agreement negotiated and signed the greater the likelihood it will survive objection or attack later.
If you already signed one and want to know whether it will be enforced for or against you, seek a family law expert immediately.