Alimony—which is officially known as spousal support under California law—can be difficult to predict even when parties believe they have established a legal contract covering the issue. In theory, it is possible for someone who is planning to get married to waive their right to seek alimony if the marriage ends in divorce. It is also possible for someone who is already married to agree in a postnuptial agreement not to seek alimony in case of divorce. But courts will not always uphold these agreements.
Whether you are preparing for marriage or contemplating divorce, it is important to understand how marital agreements can affect the ability to obtain alimony.
Attorneys Should Be Involved in the Creation of an Agreement if You Want it to be Enforceable
California law does not require people who are getting married to work with an attorney when they create a prenuptial agreement. And even though spouses are often giving up defined rights when they execute a postnuptial agreement, an attorney is not required for that either. However, if both parties do not receive advice and guidance from their own independent legal counsel before signing a prenuptial or postnuptial agreement, then certain terms in the agreement may not be enforceable.
Specifically, Section 1612(c) of the California Family Code states that provisions regarding spousal support, including waivers of alimony, are not enforceable if the spouse who would lose out was not represented by their own attorney at the time they signed the agreement. When someone signs a prenuptial or postnuptial agreement without seeking advice from an experienced family law attorney, the court may assume that the fiancé or spouse did not understand what they were signing and what they were agreeing to give up, and the court may then decide that they should not be held to the terms of the agreement. To protect the interests of both parties, each partner should hire their own attorney focused on protecting their interests and review the agreement in detail with that attorney.
Alimony Provisions in a Prenuptial or Postnuptial Agreement Can’t Be Grossly Unfair
If there is a provision in a prenuptial or postnuptial agreement waiving the right to request alimony, or a provision that sets some type of limit on alimony, and the court believes it would be “unconscionable” to enforce this provision, then the provision will have no effect. What does that mean? “Unconscionable” is a legal term that is generally interpreted as grossly or shockingly unfair. It offends the conscience and just seems wrong.
This is a very vague standard, and one that may be hard to assess at the time you are creating a prenuptial or postnuptial agreement because the court will be looking at the circumstances at the time of enforcement, not the time of creation. If a couple had a low income and very simple standard of living at the time they got married but were spending $50,000 a month on basic living expenses at the time of the divorce, the court might find an agreement limiting alimony to $500 a month to be unconscionable and refuse to enforce it. Or if both spouses agreed to waive alimony at a time when they were earning equal amounts but by the time of the divorce one spouse had given up their career to raise children or because of a medical condition, the court might find it unconscionable to prevent that spouse from requesting alimony. No one has a crystal ball to view the future, so provisions that might seem reasonable at the time of the agreement may seem grossly unfair to the court at the time a party gets divorced.
If limitations are based on a percentage of income or average expenses instead of an absolute number, then a court might be less likely to reject it as unconscionable.
Holstrom, Block & Parke Fights to Protect Your Interests in an Alimony Determination
With over 300 years of collective experience protecting clients in California divorce cases, the team at Holstrom, Block & Parke, APLC understands how to create prenuptial and postnuptial agreements in a way that enables parties to understand their rights and with terms designed to remain enforceable. Parties can agree to change the terms of a prenuptial agreement or create a postnuptial agreement after marriage, so if your circumstances have changed and you want to create an agreement that reflects these changes, our team would be happy to assist. Just schedule a consultation to get started.
