Recently, the California Court of Appeal, Fourth District, ruled that a 2002 provision of the California Family Code, which provides that premarital waivers of spousal support without independent counsel are unenforceable, could not be applied retroactively to agreements signed before the effective date of the statute. The court’s ruling was based on the fact that the statute does not merely clarify prior law, but substantially changes it.
In this case, the wife waived her right to spousal support knowingly and voluntarily, which was valid under the law at the time. The fact that she did this without the assistance of independent counsel is not enough to invalid the provision, since she was capable of understanding her husband’s financial disclosures, she knew her right to obtain her own independent counsel and she had ample time to obtain counsel. Furthermore, the agreement was not particularly complex, involved a small estate and her husband made full disclosure. To learn more about the ruling, a full document of the case decision is available online.
How the Ruling Affects Premarital Agreements
In light of this ruling, parties who executed premarital agreements that included a waiver of spousal support prior to the 2002 amendment to section 1612 taking effect should presume that the agreement is valid, even if the other party did not have independent counsel. This is presuming that the agreement and its components are not considered unconscionable.
Note that parties who execute premarital agreements that include a waiver of spousal support at this time need to ensure that both parties have independent counsel, as required by section 1612.
If you have any questions about the validity of an existing premarital agreement, or are interested in having a premarital agreement drafted or reviewed, contact us today to schedule a personal consultation. One of our expert attorneys will discuss your options with you and make sure that your interests are properly protected.