Can You Waive Spousal Support in California?
Can You Waive Spousal Support in California?
The short answer: Yes. California allows spouses to waive spousal support in a premarital agreement or in a divorce settlement, but the waiver must satisfy specific statutory protections. A court can refuse to enforce a premarital waiver that was signed without independent counsel or that is unconscionable when enforcement is sought, and a divorce judgment waiver can be challenged for nondisclosure or duress. Child support can never be waived.
Why this matters. A spousal support waiver can be worth more than any single asset in a divorce. Clients in Riverside, Rancho Cucamonga, and the High Desert communities of Victorville and Apple Valley often ask whether a prenup signed years ago still controls, or whether they can trade support for property now. The answer depends on which type of waiver is involved. Our spousal support practice handles both.
Waiving Spousal Support in a Prenup
The governing statute. Family Code section 1612 lists what a premarital agreement may cover, and subdivision (c) addresses spousal support directly. A provision limiting or waiving support is not enforceable if the spouse against whom enforcement is sought was not represented by independent counsel when the agreement was signed, or if the provision is unconscionable at the time enforcement is sought. Both tests apply, and failing either one defeats the waiver.
Independent counsel is mandatory. This is the requirement that catches people. A waiver signed by a spouse who read the agreement carefully but never had a lawyer of their own is unenforceable as to support, even if the rest of the prenup stands. The lawyer must represent that spouse alone. Sharing the other spouse's attorney, or consulting a lawyer who reviewed the document for both sides, does not satisfy the statute.
Unconscionable at enforcement. Fairness is judged when the waiver is invoked, not when it was signed. A waiver that looked reasonable to two working professionals in their twenties may be unconscionable twenty years later if one spouse left the workforce to raise children while the other built a career. Courts weigh the parties' circumstances at the time of divorce, which is why older agreements are frequently challenged.
Voluntariness and the waiting period. Family Code section 1615 adds the general rules for any premarital agreement. It must be signed voluntarily, with full disclosure of the other spouse's property and obligations, and the statute requires a waiting period of at least seven calendar days between receiving the final agreement and signing it. In In re Marriage of Bonds the California Supreme Court set the framework for judging voluntariness, and the Legislature then tightened section 1615 in response.
Waivers are not against public policy. For decades many assumed a spousal support waiver was void. In In re Marriage of Pendleton and Fireman the California Supreme Court held that premarital spousal support waivers are not automatically unenforceable, and the Legislature then codified the independent counsel and unconscionability limits now found in section 1612. Agreements signed before those rules took effect may be judged under the older case law, so the signing date matters.
Waiving Spousal Support in a Divorce Settlement
A different set of rules. Spouses can also waive support in a marital settlement agreement at the end of the marriage. Family Code section 3580 through Family Code section 3593 govern support agreements between spouses. The premarital agreement rules in section 1612 do not govern a settlement agreement, but the court still reviews the waiver for voluntariness, disclosure, and the ordinary contract defenses before incorporating it into a judgment. Our divorce practice drafts and reviews these agreements.
Nonmodifiable language. The most important drafting point is the modification clause. Family Code section 3651 subdivision (d) and Family Code section 3591 subdivision (c) provide that a spousal support agreement cannot be modified or revoked to the extent a written agreement, or an oral agreement entered in open court, specifically states that support is not subject to modification or revocation. A waiver that omits that language may leave the door open to a later request. See our guide on whether spousal support can be modified.
Terminating jurisdiction. A true waiver usually asks the court to terminate its jurisdiction over spousal support for both spouses. Once jurisdiction is terminated, neither spouse can return for support later, regardless of illness, job loss, or a failed remarriage. Compare Family Code section 4336, under which the court retains jurisdiction indefinitely in a marriage of ten years or more unless the parties agree in writing or the court orders otherwise. A written waiver is one way to override that presumption, as explained in our guide to how long spousal support lasts.
Trading support for property. Waivers are often part of a package. One spouse keeps the house or a larger share of a retirement account in exchange for waiving support. Document the trade in the agreement itself, because a judge reviewing the deal later will look for consideration and informed consent. Our guides on who gets the house and property division explain how the equalization math works.
Disclosure first. A waiver signed before financial disclosures are exchanged is at risk. Family Code section 2104 requires each spouse to serve the preliminary declaration of disclosure on FL-140 with the FL-142 and FL-150, and Family Code section 2122 allows a judgment to be set aside for fraud, perjury, duress, mental incapacity, mistake, or failure to comply with disclosure obligations. A spouse who waived support without knowing the other's true income has a basis to challenge the waiver within the deadlines in that section.
Summary dissolution requires it. One place a waiver is built in is summary dissolution under Family Code section 2400, which is available only if both spouses waive spousal support. Couples married under five years with limited assets who file FL-800 give up support permanently. Our guide to summary dissolution covers the other eligibility rules.
What Cannot Be Waived
Child support. No agreement can waive a child's right to support. Family Code section 1612 subdivision (b) states that a premarital agreement may not adversely affect a child's right to support, and the guideline formula in Family Code section 4055 applies regardless of what the parents signed. Parents may stipulate to a below-guideline amount only under the conditions in Family Code section 4065, and the court can modify it later. See child support with 50/50 custody for how the guideline works.
Other rights in the case. A spousal support waiver addresses support only. Need-based attorney fees under Family Code section 2030, property characterization under the date of separation rules, and reimbursement claims are governed by their own provisions. Read the whole agreement before assuming one clause settles everything, and see our guide to who pays attorney fees.
How Courts in the Inland Empire and High Desert Handle Waivers
Where the case is heard. Waiver disputes come up at trial or on a motion to enforce the agreement. Riverside County cases are heard at the Riverside Family Law Courthouse. San Bernardino County cases from Victorville, Hesperia, Apple Valley, and Barstow are generally heard at the Victorville, Barstow, or Joshua Tree courthouses as the court assigns them. Confirm your department on the San Bernardino Superior Court website before any hearing.
The procedure. The spouse relying on a prenup waiver raises it in the petition or response and, if contested, may ask the court to decide the agreement's validity as a separate issue before the rest of the case. The spouse challenging the waiver serves discovery about the circumstances of signing, the disclosures made, and whether counsel was involved. The court also decides whether temporary support on an FL-300 request may be ordered while the dispute is pending.
Flat-fee options. Many waiver questions fit a limited-scope engagement: reviewing an existing prenup, drafting the waiver language for a settlement agreement, or appearing at a single hearing. Our flat-fee and limited-scope options cover these tasks, and our guide to limited scope representation explains how it works.
Frequently Asked Questions
Can I waive spousal support in a California prenup without a lawyer?
No, not enforceably. Family Code section 1612 subdivision (c) makes a spousal support waiver unenforceable against a spouse who was not represented by independent counsel when the agreement was signed. The rest of the prenup may survive, but the support waiver will not. Each spouse needs a separate lawyer before signing.
Can a spousal support waiver be undone later?
Sometimes. A premarital waiver can be denied enforcement if it is unconscionable when enforcement is sought. A waiver in a divorce judgment can be set aside under Family Code section 2122 for fraud, duress, or nondisclosure within that section's deadlines, and a waiver that is not expressly nonmodifiable may be revisited under Family Code section 3651.
Does waiving spousal support affect child support?
No. Child support belongs to the child and cannot be waived by either parent in a prenup or a settlement agreement. The court applies the guideline in Family Code section 4055 and can modify child support whenever circumstances change, no matter what the spouses agreed about spousal support.
Should I waive spousal support to settle my divorce faster?
Only with the numbers in front of you. Compare the likely support award under the Family Code section 4320 factors against what you receive in exchange, and confirm that both FL-150 declarations are complete before signing. A waiver is permanent when jurisdiction is terminated, so the decision deserves the same care as the division of a house or a pension.
Talk to a California Spousal Support Attorney
Get the waiver right the first time. Gramling Law Group reviews premarital agreements, drafts enforceable support waivers, and litigates waiver disputes in family courts across the Inland Empire, the High Desert, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee and limited-scope options for agreement review and single hearings. Call (909) 654-4575 or contact us through this website to schedule a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
Learn more about our spousal support attorney serving the Inland Empire, Los Angeles County, and Southern California.
We represent clients in Victorville, Apple Valley, Riverside, and Rancho Cucamonga.
Gramling Law Group
3600 Lime St, Bldg 2, Riverside, CA 92501
Phone: (909) 654-4575
Serving the Inland Empire, Los Angeles County, Orange County, and all of Southern California except San Diego in family law and criminal defense.
Follow Daniel Gramling on Instagram: @californiafamilylawyer
Comments