Can Alimony be Waived in a Prenup or Postnup?

California law can be surprisingly picky when it comes to determining the issues that can and cannot be predetermined in a marital agreement, particularly a postnuptial agreement. So, can spouses establish an agreement specifying that they will not seek alimony during or after a divorce? The answer depends on the circumstances surrounding the creation of the agreement and at the time of divorce.

Did the Spouse Waiving Alimony Receive Advice from Independent Legal Counsel?

Generally, two people can create a prenuptial agreement without the advice or assistance of an attorney. However, Section 1612 of the California Family Code specifies that provisions regarding spousal support—the official term for alimony—are not enforceable if the person who stands to lose from that provision was not represented by independent counsel at the time the agreement was signed. In other words, if the spouse who waived alimony in the agreement did not have their own attorney at the time of signing, then their waiver of alimony is not legally valid.

So, the first step to enable a spouse to waive alimony in pre or postnuptial agreement is to ensure that that spouse has advice from an independent attorney who is not also representing the other spouse.

Is the Alimony Provision in the Prenuptial Agreement Unconscionable as Applied?

The statutory section that requires a spouse to receive independent legal advice before waiving alimony also specifies that a waiver would not be enforceable if it “is unconscionable at the time of enforcement.” What does that mean?

The term “unconscionable” is a somewhat vague yet common legal standard courts use to set aside agreements or change outcomes that a judge finds to be grossly unfair. Sometimes, they describe something as unconscionable if it would “shock the conscience.” Essentially, the court will not uphold something the judge considers to be so unfair that it is simply wrong.

What makes a prenuptial agreement regarding alimony grossly unfair? That would depend on the circumstances presented. In one case, a prenuptial agreement provision that limited a spouse to $6,000 in alimony per month was invalidated as unconscionable. That was based on the fact that at the time of the divorce, the couple enjoyed a lifestyle that would have cost $37,000 a month for that spouse to maintain, and they also had six children. Had the couple enjoyed a more modest lifestyle, an agreement limiting alimony to $6,000 per month might have been considered reasonable, or at least not so unfair as to be invalidated.

With this in mind, even if a spouse is represented by independent counsel, the circumstances at the time of the divorce will determine whether a waiver of alimony will be accepted by the court.

Is the Agreement Enforceable?

For any provision in a prenuptial agreement to be enforceable, the agreement itself must be valid. It must be property signed and notarized, and both parties must have signed voluntarily and not under coercion. In addition, each party must have provided the other with full disclosure of their financial situation, including debts or they must have waived their right to disclosure in writing.

The law specifies that a premarital agreement will only be considered to have been executed voluntarily if the party against whom it is being enforced was represented by an attorney or expressly waived the right to legal counsel. Again, the law places great emphasis on the need for legal advice so that parties understand the rights they are potentially compromising in a prenuptial agreement. Moreover, the law also requires a party to be given at least seven days to consider the terms of the final agreement before signing.

Postnuptial Agreements

When a couple enters into a postnuptial agreement, they are altering the rights and obligations that have already been created by virtue of the marriage. Instead of affecting potential future rights, like a prenuptial agreement, the postnuptial agreement impacts existing rights. For that reason, courts scrutinize these agreements far more closely.

The court may consider waiver of alimony in a postnuptial agreement to be unfair, particularly if one spouse stayed out of the workforce to focus on the home. Courts will also look carefully for any signs of coercion.

Experienced Legal Guidance Helps You Achieve Your Goals for Alimony and Marital Agreements

The bottom line is that while it is possible to waive alimony in a prenuptial or postnuptial agreement, it can be difficult to enforce a waiver. When you are creating a marital agreement, great care must be taken to follow every requirement and establish terms that are not likely to be viewed as grossly unfair with respect to spousal support.

If you are interested in creating an agreement regarding alimony or you are concerned with the enforceability of a waiver already in existence, you can trust the experienced team at Holstrom, Block & Parke, APLC to protect your interests. Our Certified Family Law Specialists and associates are available to answer your questions—just schedule a consultation to get started.

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