Waiving spousal support in a premarital agreement

Prior to their marriage, Peter and Debra Last entered into a premarital agreement that waived the right to receive spousal support if and when the parties divorced. In Last v. The Superior Court of Orange County _ DJAR _ (Aug. 2, 2023), the court held that Family Code section 1615(c) creates a presumption “that a premarital agreement is not executed voluntarily” unless the trial court makes five designated findings. Thus, notwithstanding the parties’s waivers of spousal support in their premarital agreement, the trial court had jurisdiction to award spousal support to Debra because the judge did not make the findings that were necessary to rebut the presumption.

The five findings are as follows:

(1) The party against whom enforcement is sought was represented by independent counsel at the time of signing the agreement . …

(2) The party against whom enforcement is sought had not less than seven calendar days between the time that the party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed . …

(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement . …

(4) The agreement … was not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

(5) Any other factors the court deems relevant.

The appellate court held that although the premarital agreement in this case might appear to satisfy the requirements of sections 1615(c)(1) and (2), the trial court made no findings on the subject, and “it is the court’s findings that rebut the presumption of involuntary execution.”

In summary, Last holds definitively that a premarital agreement will not be presumed to be valid for any purpose; that a spousal support waiver in the premarital agreement does not bar an award of temporary spousal support; and that any such waiver is unenforceable until the trial court has made the findings required by section 1615.

In response to Peter’s objections, the appellate court noted that he had remedies in the event that the spousal support waiver was ultimately upheld. To begin with, the trial court retained jurisdiction to modify its support order retroactively. According to the appellate court; “Distilled simply, Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1073-74 and Marriage of Gruen (2011) 191 Cal.App.4th 627, 639, together establish the rule that a trial court lacks jurisdiction to retroactively modify a temporary support order to any date earlier than the date on which a proper pleading seeking modification of such order is filed, unless the trial court expressly reserved jurisdiction to amend the support order such that the parties’ clear expectation is the original support order is not final.” Marriage of Spector (2018) 2024 Cal.App.5th 201, 210. The appellate court found the trial court’s statement that “the order regarding spousal support … may be reallocated at the conclusion … if the premarital agreement is found to be valid” sufficient to constitute a reservation of jurisdiction.

Moreover, the appellate court concluded that Peter had adequate means to obtain reimbursement: “If the trial court determines the premarital agreement is enforceable, the court can order Debra to account for the support payments she received and order reimbursement to Peter, and enforce that order by means of [Family Code] section 290. Thus, for example, the court could issue a writ of execution or order the sale of Debra’s share of community property.

See Marriage of Farner (1989) 216 Cal.App.3d 1370, 1374-76; Bonner v. Superior Court (1976) 63 Cal.App.3d 156, 166-67.

The problem with the remedies identified by the appellate court is that they require additional litigation in order to rectify the situation if the spousal support waiver is upheld. For that reason, the proponent of a spousal support waiver should consider incorporating provisions into the premarital agreement that disincentivizes a party from requesting temporary spousal support in derogation of the waiver. For example, the agreement could require the return of the consideration for the waiver; alternatively (and preferably), the agreement could defer payment of all or part of the consideration unless and until the right to receive temporary and permanent spousal support is waived in a stipulated order filed in the divorce action. If a party requested an award of spousal support, the consideration for the waiver would not be owed and would not be paid.

Wholly apart from the options for disincentivizing a request for temporary spousal support or for recouping temporary spousal support paid in derogation of a waiver, the proponent of enforcing the agreement should request findings at the earliest practicable time.

The evidentiary burden is on the party seeking to enforce the waiver; he or she must be prepared to present evidence sufficient for the court to make the required findings. As the appellate court stated: “It is therefore incumbent upon the party seeking to enforce a premarital agreement to initiate this first step [i.e., a facial review of the agreement] by bringing a Request for Order for the trial court to undertake such a facial review and make findings under section 1615(c).”

However, this may also be an ineffective remedy. While it would be relatively easy for a trial court to determine if both parties were represented by independent counsel, and if the seven-day waiting requirement was met, it may not be so easy to resolve claims that the agreement was executed as a result of duress, fraud or undue influence, and a party making such claims would presumably be entitled to conduct discovery. Unless an evidentiary hearing was scheduled promptly, it would effectively constitute the bifurcated trial on the validity of the premarital agreement that is routinely requested and granted in most of these cases, and temporary spousal support would continue to be paid pending the outcome. For this reason, Last offers little solace to a party attempting to enforce a spousal support waiver in a premarital agreement. A more effective alternative is tying the payment of the consideration to a waiver in the divorce action that is indisputably valid and enforceable.