Marriage of Melissa: The validity of a spousal support waiver depends on when it was executed; the waiver executed before the enactment of the UPAA is void.
By Garrett C. Dailey, Family Law Specialist
FACTS: H and W met in 1984. After dating a few months, they moved in together; W moved out; they then reconciled and set a wedding date. W became pregnant about this time. H insisted on a premarital agreement (PMA) as a condition for marriage. H was 41 and had a net worth of $2 million. W was 32, a nurse and living in a rented apartment. H had an attorney draft a 3-pg. PMA. W had no input about its wording. It was signed in front of a notary. W testified that she saw the PMA on 8/5/85, the day she signed it, 3 days before the wedding. H recalled that his attorney came over to the house and explained it to them in July and that W signed it in August. Attorney believed he drafted the PMA sometime in August but had no recollection of meeting with the parties to go over it.
The terms of the PMA waived any interest in the s/p of the other. It also acknowledged that In re Marriage of Higgason, supra, 10 Cal.3d 476 stated that s/s could not be waived, but stated that the law was “in a state of flux” and mutually waived the right to spousal support. Parties married and had a son who is mentally disabled, and also suffers from Fragile-X syndrome and autism. W stopped working full time in 1997. Parties separated in 2009.
The validity of the PMA was bifurcated, and the trial ct. determined that the waiver in 1985 was void as against public policy. Court of Appeal affirmed.
HELD: The validity of a spousal support waiver depends on when it was executed; waiver executed before the enactment of the UPAA was void as against public policy.
Court of Appeal reviewed the history of PMA s/s waivers. Higgason held that a waiver of support was against public policy because it sought to alter a spouse’s statutory obligation of support. (In re Marriage of Higgason, supra, 10 Cal.3d at p. 485.)
In 1986, the Uniform Premarital Agreement Act (UPAA) became effective. In adopting the UPAA, the Legislature deleted the subdivision that would have expressly permitted the parties to modify or eliminate spousal support. Instead, it permitted the parties to agree on “[a]ny other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” ( FC §1612(a)(7).) Thus, the Legislature intended to leave the enforceability of spousal support waivers to the courts.
Between 1986 and 2000, the law was “in flux” in that the UPAA had been adopted and the Legislature had not prohibited waivers of spousal support, as it did for child support.
Marriage of Melissa: Shift in Public Policy Towards Spousal Support
It was not until 2000 that the Supreme Ct. recognized in In re Marriage of Pendleton & Fireman, supra, 24 Cal.4th 39, 48-49, that there had been a shift in public policy towards spousal support waivers and that “the common law policy, based on assumptions that dissolution of marriage is contrary to public policy and that premarital waivers of spousal support may promote dissolution, is anachronistic.” (Ibid.) Court noted the Legislature could “limit the right to enter into premarital waivers of spousal support and/or specify the circumstances in which enforcement should be denied,” which it promptly did when it enacted Family Code section 1612(c), effective 2002. Since this PMA was executed in 1985, its validity was determined by the law in existence at that time: ‘The law applicable to the validity and enforcement of premarital agreements turns on the date of execution.’ [Citation.] As discussed in some detail above, the applicable law is different depending on whether the court is analyzing (1) pre-1986 agreements (before adoption of the Uniform Act), (2) agreements executed in the period between 1986 and 2002 (before amendment of the Uniform Act), and (3) post-2002 agreements (when the Uniform Act was amended with technical requirements for valid spousal support waivers that are not retroactive).” (In re Marriage of Melissa, supra, 212 Cal.App.4th at p. 611.)
Since this case involved a pre-1986 PMA, the law and public policy as articulated in Higgason was in full effect and waivers of spousal support were unenforceable.
NOTES: Ordered published at the request of ACFLS. Modified and certified for publication 1/2/13.
COMMENT: J. Kennard lamented in her dissent in Pendleton that the Court had not “articulate[d] guidelines for the bench and bar explaining when, if ever, such waivers are enforceable.” (In re Marriage of Pendleton & Fireman, supra, 24 Cal.4th at p. 59 (dis. opn. of Kennard J.).) Melissa does that. The rule is straightforward, logical and easy to apply: 1) Waivers of spousal support executed before 1986 are invalid as contrary to public policy; 2) Waivers executed between 1986 and 2002 are presumptively valid, or at least not per se invalid; and 3) Waivers commencing 1/1/2002 are controlled by Family Code section 1612(c).
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.