Spousal support in a California prenuptial agreement

Spousal support is the one term with rules of its own

Most of a premarital agreement is about property: what each person brings, what happens to it, who owns what is bought later. Spousal support is different. It has its own conditions, separate from everything else in the agreement, and a support term can fail while the rest of the document stands.

This matters because support is very often the reason somebody wants an agreement in the first place. A person who has been through a dissolution once, or who has watched one, frequently cares more about that exposure than about the house.

What follows sets out the two conditions that attach to a support term, the sentence that catches people out, and what a couple can do about it. It is general information with the authority for each point, not advice about your own situation.

A term about spousal support is not enforceable against a party who was not represented by their own independent lawyer when the agreement was signed. Fam. Code, § 1612, subd. (c)

The first condition: the party it is used against had their own lawyer

The first condition is about representation at the moment of signing, and it is not satisfied by an offer of a lawyer, by advice to get one, or by a waiver.

That is a real difference from the rest of the agreement. Elsewhere, a party who is told to get their own lawyer and then gives up that right in a separate signed writing has met the condition. For a spousal support term there is no equivalent route: the party either had their own lawyer when they signed or they did not.

The practical consequence is one this office states before a matter starts rather than after. Where an agreement is going to contain a support term, the other party cannot waive counsel and still have that term hold up against them. If they will not retain anyone, the choice is to remove the support term or to accept that it is exposed.

A term about spousal support is not enforceable against a party who was not represented by their own independent lawyer when the agreement was signed. Fam. Code, § 1612, subd. (c)

The second condition: it is judged again at the end, not only at the beginning

The rest of the agreement is judged as at the day it was signed. A support term is judged twice: once then, and again when somebody tries to use it.

That is a strange thing to sit with, because it means a term can be entirely reasonable on the day two people sign it and not be reasonable by the time it matters. Twenty years of a marriage can do that. One party gives up a career, or becomes ill, or the numbers that looked modest in the year of the wedding turn out to describe a different life.

Nothing about the signing fixes this. It is not a defect in the drafting and it cannot be drafted around, because the second look happens on facts that do not exist yet.

A term about spousal support is also not enforceable if it is unconscionable at the time enforcement is sought, even where that party had their own lawyer. Fam. Code, § 1612, subd. (c)

The sentence that catches people out

Here is where almost every published account stops short. Having read that a support term needs independent counsel, the natural inference is that counsel fixes it: get the other party a lawyer, and the term is secure.

It does not work that way. Representation satisfies the first condition and does nothing for the second. A support term that is otherwise unenforceable is not rescued by the fact that the party had a lawyer when they signed.

That sentence is in the subdivision, in terms. It is worth reading twice, because the opposite belief is widespread and it leads couples to think a problem has been solved by spending money on a second lawyer when it has not.

A spousal support term that is otherwise unenforceable does not become enforceable just because the party it is asserted against had their own independent lawyer. Fam. Code, § 1612, subd. (c)

What a couple can actually do

None of this makes a support term pointless. It makes it a term that has to be written with the second look in mind, and there are choices that help.

A term that is proportionate to the marriage tends to survive contact with reality better than a flat waiver signed at twenty-six. Support that steps up with the length of the marriage, or that falls away after a period rather than never existing, is a different proposition from nothing at all.

Being specific about what the parties actually knew helps too. A term written when both people were earning similarly, and which says so, is a different document from one that is silent about the circumstances.

And the plainest option is worth naming: leave support out. An agreement can deal with property in full and say nothing about support, and for many couples that is the sensible bargain. There is no requirement to cover everything.

A premarital agreement may cover each party’s rights in property, how property is bought, sold or managed, what happens to property on separation, dissolution or death, the making of a will or trust, the ownership of a life insurance death benefit, and which state’s law applies. Fam. Code, § 1612, subd. (a)

What the agreement cannot do about support

Two limits are worth stating because they come up constantly.

The first is children. Whatever a couple agrees between themselves, a child’s right to support is not theirs to bargain away, and a term that tried would not do what it appeared to do.

The second is the outer limit on what an agreement may cover at all. The subjects a premarital agreement may deal with are listed, and there is a catch-all for anything else, with a limit on what that catch-all reaches.

A premarital agreement cannot adversely affect a child’s right to support. Fam. Code, § 1612, subd. (b)

Beyond the specific subjects the statute lists, a premarital agreement may cover any other matter that does not violate public policy or a statute imposing a criminal penalty. Fam. Code, § 1612, subd. (a)(7)

Why the second look exists at all

It is worth understanding why support is treated differently, because it explains why the rule cannot be drafted around.

Property can be divided on the facts as they were. Who owned the flat before the wedding is a question with an answer, and it does not change. Support is about what one person needs and what the other can pay, and both of those are facts about the future. An agreement made at twenty-eight is making a prediction about two people at fifty-five.

Every other term in the document describes something that already exists. A support term describes something nobody has seen yet, which is why it alone is looked at twice, and why the second look is on the facts as they turn out rather than as they were imagined.

That is not a flaw in the agreement. It is what makes the agreement bearable to sign: neither party is being asked to guarantee a future they cannot see.

What a support term is usually trying to do

In practice the concern behind a support term is narrower than the term itself, and naming the concern often changes what the agreement should say.

Sometimes the worry is a short marriage: someone who does not want a two-year marriage to produce a long obligation. That is a length question, and a term tied to the length of the marriage addresses it directly.

Sometimes it is a second marriage, where obligations from a first one are already running and the worry is about layering another on top. That is a different question and it often needs the rest of the agreement more than it needs a support term.

And sometimes it is a disparity in earnings that both people expect to close. A term written for a gap that closes looks very different from one written for a gap that widens.

The conversation worth having is which of these it is, because in more than a few matters the honest answer removes the need for the term.

Disclosure matters here too

A support term is written against a picture of what each person has and earns. If the picture was wrong, the term was written against something that did not exist.

That is not only a fairness point. Disclosure is one of the elements that gets examined if an agreement is challenged, and the parts of a document that depend most on what each party knew are the parts most exposed when it turns out they did not know it.

This office serves a written disclosure of property and debts on both sides before the agreement is signed, and keeps the record of what was served and when.

This office prepares a written disclosure of each party’s property and debts and serves it before the agreement is signed. It does that because disclosure is one of the things a court looks at if the agreement is ever challenged as unconscionable, and because an agreement is easier to keep to when neither party is surprised later by what the other owned.

An agreement that was unconscionable when it was signed is not enforceable where the party against whom it is asserted was not given disclosure, did not waive disclosure in writing, and did not otherwise have adequate knowledge. Fam. Code, § 1615, subd. (a)(2)

How this office handles a support term

A matter that is going to contain a support term is priced and run differently, because it carries a requirement the rest of the agreement does not.

The other party cannot proceed unrepresented. The portal will not accept a waiver of counsel on a matter where the agreement contains a support provision, and it says why at the moment somebody tries: the provision is exposed unless the party was actually represented, and a waiver cannot cure that. The office confirms the other party’s own lawyer by certificate before signing is possible.

If the other party will not retain anyone, the matter does not simply stall. The office says so, and the choice goes back to the client: remove the term, or accept what it is worth without representation on the other side.

A term about spousal support is not enforceable against a party who was not represented by their own independent lawyer when the agreement was signed. Fam. Code, § 1612, subd. (c)

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

If the other party already has a lawyer, what that lawyer does

Where the other party retains their own lawyer, that lawyer is not a formality and is not paid by this office. They act for the other party alone and bill them directly.

What they do with a support term is read it against their own client’s position and say whether it is one their client should sign. Quite often they come back with a counter-proposal, and the term that ends up in the agreement is not the one that went out. That is the process working, not failing.

On this platform, the other party’s lawyer confirms their representation by certificate, which is recorded against the matter with the date and the lawyer’s bar number. The certificate is evidence that the representation happened; it is not itself what satisfies the condition.

Where the other party asks this office to recommend someone, the office will not. It gives them the means to find their own and has no interest in who they choose.

This office acts for one party only. The other party is free to retain any California lawyer they choose, and this office will not advise them.

A term made after the wedding is governed by different law

Couples sometimes ask whether the support question can be dealt with later, once things have settled down. It can, but the agreement is then a different kind of agreement, made between people who are already married rather than between two people who are not yet.

That changes the law that applies to it, and it changes what the parties owe each other in the making of it. It is not simply a premarital agreement signed late.

An agreement made after the wedding is not a premarital agreement, and the Uniform Premarital Agreement Act does not govern it. Fam. Code, § 1600 et seq.; Fam. Code, § 1610, subd. (a)

Spouses owe each other a fiduciary duty in their dealings with one another, of the highest good faith and fair dealing, and neither may take unfair advantage of the other. Fam. Code, § 721, subd. (b)

What to take from this page

Three things. A support term needs the other party to have their own lawyer, and no waiver substitutes. It is judged again at the end, on facts nobody has yet. And counsel at the beginning does not answer the second question, whatever else you read.

If you are considering a support term, the useful conversation is about what you are actually trying to protect against, because the answer sometimes turns out not to need a support term at all.