Jim Porter: May a spouse waive spousal support? | SierraSun.com

Jim Porter: May a spouse waive spousal support?

Raymond and Roberta Melissa were married in 1985 a few days after they signed a prenuptial agreement where Roberta signed away her rights to spousal support should she get divorced from Raymond who was by far the wealthier of the two. Is that legal?


If you are interested in accepting legal advice from a lawyer who doesn’t know what he is talking about, keep reading.

Family law, or as my brother Rob used to call it, Un-family law, is somewhat of a specialty and an area I retired from many years ago.

What caused my early retirement was my last case. Husband and wife were arguing over splitting their possessions.

My Property Settlement Agreement included the following: “Wife gets records, Husband gets ‘Big Wheel Canon Ball’ record, Wife gets Sears iron, Husband gets G.E. iron.” That was it for me.

But if you’re willing, I’m willing. Here’s a new California case that does a good job of explaining the basic law of waiving spousal support.

It was simple enough that even I could understand. I hope this is an area of the law that is of no interest to you.


Roberta and Raymond got together, separated, then reconciled and finally decided to get married. They set a wedding date of August 8, 1985, just as they learned Roberta was pregnant.


Given a prior bad marriage, Raymond insisted on a prenuptial agreement which his lawyer prepared and they both signed -— three days before the wedding. Roberta really didn’t have a choice if she wanted to get married. In the end, she signed.

The prenupt had all the magic phrases about full disclosure and an opportunity for a lawyer to review, but bottom line, each party waived the right to seek spousal support from the other should the marriage ever be dissolved.

The marriage lasted a little over 20 years when Roberta filed a petition for dissolution seeking spousal support, in part to take care of their mentally disabled child who suffered from Fragile-X syndrome and autism.

The trial court determined the spousal support waiver was unenforceable — unjust and against public policy. Raymond appealed.


As the Court of Appeal wrote, the public policy against spousal support waivers dates back to 1872 when the Legislature enacted Section 159 of the Civil Code which declared that spousal support waivers were contrary to public policy. They encouraged divorce, or at least that was the thinking at the time.

The California Supreme Court upheld Section 159 in 1973 with a long-winded, if not archaic, Opinion: “The good order and well being of society, as well as the laws of this state, require this. And so strict and careful are courts in the administration of this justice, out of regard for the public morals and the general welfare of society, that they will esteem it their duty to interfere upon their own motions whenever it appears the dissolution is sought to be effected by the connivance or collusion of the parties; and all contrivances or agreements, having for their object the termination of the marriage contract, or designed to facilitate or procure it, will be declared illegal and void as against public policy.”

That was a mouthful but clearly the Supreme Court did not favor married couples “conniving” to encourage divorce by making it financially painless for a spouse to be able to avoid support payments with a waiver.

Over the years the strict prohibition against spousal support waivers softened such that in 1985 the status of the law was prenuptial agreements would be enforced if they “did not objectively encourage or promote dissolution.” But spousal support waivers were still not enforced.


Then in 1986, California adopted the Uniform Premarital Agreement Act and that changed the law of spousal support once again, until 2000 when the Supreme Court modified the law resulting in a Legislative change in 2002.

After 2002, spousal support waivers require the waiving party to have his or her own attorney and mandate seven days between when a prenuptial agreement is presented to a party and when it is signed.


The Court of Appeal, after tracking the changes over the years in the enforceability of spousal support waivers in prenuptial agreements, concluded that in 1985 when the Melissas’ prenuptial agreement was signed, such waivers were against public policy. Roberta is able to recover spousal support.

Raymond should read this column before he gets married a third time.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or http://www.portersimon.com. Find them on Facebook.

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