Arguing Against a Prenup Position on Spousal Support

Spousal support may be ordered when a marriage ends if there is a disparity in the income of the two spouses. Spousal support can be awarded on a temporary basis and, if the marriage was a short one, it is common for support to be granted for half of the time the marriage lasted. This would mean a marriage of six years could result in the higher earning spouse paying spousal support for the lower earner for around three years.  In some cases, spousal support is ordered on a permanent or ongoing basis, especially if the marriage was a marriage of long duration that lasted 10 years or more. 

In some cases, when people marry, they want to protect themselves from being forced to pay spousal support. As a result, a couple may enter into a prenuptial agreement which addresses whether spousal support will be paid or not. The prenuptial agreement can dictate an amount of spousal support (which is sometimes based on years of marriage) or can involve a waiver of the right to spousal support altogether.

If you have a prenuptial agreement in place in which you waived spousal support or agreed to accept only a limited support amount, you may not want the terms of the agreement to apply at the time of your divorce. In some cases, it is possible to make an argument that a prenuptial agreement should not be controlling. However, you will need to have a very strong argument for why the contract shouldn’t be followed. The expert spousal support lawyers at Brown & Charbonneau, LLP can help you to try to argue against the enforcement of a prenups’s terms on support.

Arguing That a Prenup Shouldn’t Dictate Spousal Support

California Family Code Section 1612 provides details on the provisions which can be included in a prenuptial agreement. According to the relevant code section, two people who are getting married can make an agreement on matters “including their personal rights and obligations,” as long as the agreement is not in violation of public policy or criminal law. The same code section makes clear that a clause addressing child support in a prenuptial agreement is not going to be enforced. Parents cannot waive child support because it is the right of the child to receive this support.

Spousal support, however, can be determined based on a prenuptial agreement but only in certain circumstances. According to Code Section 1612: “Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement.”

This means if you did not have an attorney of your own representing you at the time when you signed the prenuptial agreement, any provisions it contains related to spousal support will not be enforced. Further, the same code section goes on to make clear that a provision on spousal support which is otherwise unenforceable will not be enforceable just because you had a lawyer. In other words, having independent counsel is necessary for a provision on spousal support to be enforced, but it is not sufficient or by itself enough to make the agreement enforceable.

You thus have several arguments you can make when you don’t want a provision on support to be enforced. If you can show you didn’t have independent counsel, the court will not consider the prenuptial agreement in deciding whether to award support or what amount of support to award. If you did have a lawyer representing you when you signed, you can argue that enforcement of the provision is unconscionable. Unconscionable means it would be grossly unfair to enforce the provisions of the spousal support agreement, such that enforcement would shock a reasonable person’s conscious.

How A California Spousal Support Lawyer Can Help You

The stakes are very high when your right to spousal support could be affected by a prenuptial agreement. You need to ensure you are ready to make the strongest arguments you can for why the contract should not be enforced at the time that your marriage ends.

The expert spousal support lawyers at Brown & Charbonneau, LLP have extensive experience helping clients to argue for prenuptial agreement provisions related to spousal support to be invalidated. To learn more about how we can help you and to get a legal advocate on your side who can assist you in fighting for a  support order not based on the prenup, give us a call at 866-237-8129 or contact us online.