Enforcement of Pre-marital Agreement Waiver of Spousal Support

Will a spousal suport waiver contained in a premarital agreement be binding? Base on the landmark case of In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39 and recent statutes, most attorneys would answer the question in the affirimative. However the answer is more complex as is reflected in the recent case of Marriage of Rosendale, June 28, 2004, 119 Cal. App. 4th 1202; 15 Cal. Rptr. 3d 137;

Carol and Warren (Rosendale) shortly before their marriage entered into a pre-marital agreement and being represented by counsel the parties waived their rights to ever receive spousal support from each other in the event of a dissolution of their upcoming marriage. Eight years after the agreement Ms. Rosendale suffered a severe auto accident resulting in permanent injuries and mental impairment. A few years after the accident Warren decided to divorce his injured spouse.

In a bifurcated trial in June 2001, Husband contended that the pre-marital agreement should be enforced and no spousal support should be ordered for his now disabled spouse. The trial court so ordered.

Carol, contended, on appeal that Family Code Section 1616(c) (Stats. 2001,ch.286,¤1) which became effective on 1/1/02 after the trial, provides that a pre-marital waiver of spousal support will not be enforced if at the time of enforcement same would be unconscionable. Husband contended, on appeal, that the agreement was in compliance with then existing law at the time of its execution. It was not in violation of public policy, under Family Code Section 1612,subdivision (a)(7), and satisfied the requirements of Family Code section 1615, subdivision (a), because it was not unconscionable when executed. Husband further contended that the retroactive application of Family Code Section 1616(c) upon which Wife now relies is inapplicable, and that the trial court should not be reversed. On appeal, the trial court was reversed.

Family Code Section 1612 subdivision (c) provides:

“Any provisions in a pre-marital 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…”

Carol urged the Appellate court to retroactively apply subdivision (c) of Family Code Section 1612 to her case even though the agreement was executed before the date of subdivision (c) was added to the statute. The Appellate Court agreed with Warren that retroactive application of statutes do not operate automatically unless the legislature plainly intended them to do so, “statutes do not operate retrospectively unless the Legislature plainly intended them to do so [Citation]” (Western Security Bank v Superior Court (1997) 15 Cal.4th 232,243)

However, the Appellate Court went on to state that there was “no need for the legislation to indicate such an intent” … as the “common law in effect at the time Section 1612 was amended already provided that a court would not enforce a pre-marital waiver of spousal support if at the time enforcement was sought enforcement would be unconscionable”. As such, the Appellate Court found that the legislature was amending a statute to clarify rather than change existing law.

In arguing the common law applicable to the enforceability of premarital spousal support waivers, both parties cited In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39. In Pendleton the Supreme Court considered whether pre-marital agreements containing spousal support waivers were unenforceable per se. It held that they are not. In Rosendale husband argued that Pendleton represents the applicable law in effect at the time the pre-marital agreement at issue was executed and that Pendleton & Fireman did not provide a “out” for Carol. The Rosendale Appellate Court rejected his interpretation of Pendleton. The Court noted that Pendleton specifically stated:

“[It was] not necessary to decide in [the] case [before it] whether all such agreements are in force regardless of the circumstances of the parties at the time enforcement is sought”. Pendleton at Page 41.

In other words, the Pendleton court did not address whether a spousal support waiver contained in an otherwise valid and enforceable pre-marital agreement might be held unenforceable if it would be unconscionable to enforce it at the pertinent time. That issue was not before the Pendleton court.

The Rosendale Appellate Court found that there were more probative cases to answer the question as to what the common law was at the time the agreement was executed. The court refers to Wright v. Wright (1957) 148 Cal.App.2d 257. In Wright, a wife with what she first thought was dormant tuberculosis, sought to be relieved of a minimal spousal support provision in a marital settlement agreement to which she had agreed to just the preceding month. In the interim her doctor had found a spot on her lung and had given her a very bad medical prognosis. The court agreed to her request holding that “it would be unconscionable to enforce the spousal support provisions against the wife under the circumstances” (id at p. 271).

The Court then made reference to another case, Moog v Moog (1928) 203 Cal.406, where a wife contracted tuberculosis and became blind. While both the Wright and Moog cases dealt with relieving a spouse of a waiver of support contained in a marital settlement agreement, the Rosendale court found that the waiver in a premarital agreement was subject to similar considerations.

The Rosendale court referred to various statutes dealing with the awarding of spousal support and noted that they “underscore the continued importance of spousal support in our modern society, under appropriate circumstances. In that way, they also support the continued application of the rule of unconsionability as reflected in Wright … and the application of that rule in premarital agreements”.

A case quote not utilized by the Rosendale court but very colorfully makes the same point cam be found in In re Marriage of Brantner (1977) 67 Cal.App.3d 416, 136 Cal.Rptr. 635;

“A woman is not a breeding cow to be nurtured during her years of fecundity, then conveniently and economically converted to cheap steaks when past her prime.” (Id. at p. 419.)

The Rosendale Court held that California common law will not permit one spouse to discard his or her disabled spouse without providing spousal support, even when such a waiver is contained in a premarital agreement, if it would be unconscionable to do so at the time enforcement of the waiver is sought.

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