Can You Waive Spousal Support in a California Prenup?
The short answer: Yes. California allows spouses to waive or limit spousal support in a premarital agreement, but the waiver is enforceable only if the spouse giving up support had independent counsel when the agreement was signed and the waiver is not unconscionable at the time of divorce. Both conditions come from Family Code section 1612. Judges at the Riverside Family Law Courthouse and the Victorville courthouse apply the same two-part test, and a waiver that fails either part is set aside, leaving spousal support to be decided under the ordinary rules.
What Family Code Section 1612 Says About Support Waivers
Two independent requirements. Family Code section 1612 lets a premarital agreement address spousal support, including a complete waiver, but subdivision (c) attaches two conditions. (1) The party against whom the waiver is being enforced must have been represented by independent counsel when the agreement was signed. (2) The provision must not be unconscionable at the time of enforcement, which means when the divorce is actually before the court, not when the agreement was drafted. A polished waiver signed without a lawyer fails the first condition no matter how fair its terms appear.
Where the rule came from. In In re Marriage of Pendleton and Fireman, the California Supreme Court held that premarital spousal support waivers are not automatically void as against public policy when both parties are sophisticated and represented. The Legislature then wrote the two conditions into Family Code section 1612 so that the protection would not depend on a case-by-case fairness argument. The result is a bright line on counsel and a safety valve on unconscionability.
What Counts as Independent Counsel
A lawyer of your own. Independent counsel means an attorney who represents only the spouse who is waiving support. One lawyer who drafts the agreement for both parties does not satisfy the statute, and neither does a lawyer who was hired and paid by the other spouse without a clear, separate engagement. The written waiver of counsel that can satisfy Family Code section 1615 for other prenup terms does not cure a missing lawyer under Family Code section 1612, because the support provision has its own stricter rule.
A recurring problem in the High Desert. We regularly see agreements signed in Victorville, Apple Valley, and Barstow where one spouse used a lawyer and the other signed at a notary or a kitchen table. In that situation the property terms may survive, but the support waiver is unenforceable from the start. Family law cases from these communities are generally heard at the Victorville, Barstow, or Joshua Tree courthouses as the court assigns them; confirm the current assignment on the San Bernardino Superior Court website.
Unconscionable at the Time of Enforcement
Fairness is judged at divorce, not at signing. The second condition asks whether enforcing the waiver today would be unconscionable. In In re Marriage of Facter, the Court of Appeal upheld a trial court's refusal to enforce a support waiver where the marriage had lasted many years, the waiving spouse had left the workforce to raise the children, and the other spouse had become very wealthy. Courts look at the length of the marriage, the gap in earning capacity, health, age, the marital standard of living, and whether one spouse sacrificed a career for the family.
What this means for drafting. A waiver is most likely to hold up when both spouses had comparable incomes, the marriage was relatively short, and neither party gave up work to support the other's career. Planners often build in a sliding scale, for example a limited support payment that grows with the length of the marriage, rather than a flat waiver, because a measured provision is far harder to call unconscionable. The date of separation fixes the length of the marriage for this analysis.
Voluntariness Rules Under Family Code Section 1615
The entire agreement must be voluntary. Even a support waiver that clears Family Code section 1612 fails if the agreement as a whole was not voluntarily signed. Family Code section 1615 presumes a premarital agreement was not voluntary unless the challenging party had independent counsel or expressly waived counsel in a separate writing, had at least seven calendar days between first receiving the final agreement and signing it, received a full written explanation of the terms and the rights being given up if unrepresented, and was not under duress, fraud, or undue influence. The California Supreme Court's decision in In re Marriage of Bonds prompted the Legislature to adopt these specific requirements.
Child support cannot be waived. Family Code section 1612 also provides that a premarital agreement may not adversely affect a child's right to support. A clause purporting to waive or cap child support is unenforceable, and guideline support under Family Code section 4055 applies regardless of what the prenup says. Custody and visitation terms are likewise decided on the child's best interest, not on a contract signed before the child was born.
What Happens If the Waiver Fails
Support is decided under the ordinary rules. When a waiver is struck, the court can award temporary spousal support under Family Code section 3600 while the case is pending and long-term support under the factors in Family Code section 4320 at judgment. The ten-year rule in Family Code section 4336 governs how long the court keeps jurisdiction, as explained in our guide to how long spousal support lasts, and later changes follow the modification rules.
The property terms usually survive. Most premarital agreements contain a severability clause, and Family Code section 1612 separately authorizes agreements about property rights, so a court can refuse to enforce the support waiver while still honoring the parties' agreement on separate and community property. That matters in a long marriage where property division involves a business, a pension, or real estate in Riverside or Rancho Cucamonga. Each provision is analyzed on its own terms.
Waiving Support in a Postnup or Settlement Agreement
Different documents, different rules. Agreements signed after the wedding are judged under the fiduciary duties spouses owe each other under Family Code section 721, so a postnuptial support waiver that favors one spouse is presumed to be the product of undue influence and must be justified. A waiver in a marital settlement agreement at the end of the case is common and generally enforceable, and under Family Code section 3591 the parties can make support nonmodifiable if the agreement says so expressly. Couples who reach these terms in mediation avoid a contested hearing on the issue entirely.
Frequently Asked Questions
Does a spousal support waiver still count after a twenty-year marriage?
Sometimes, but it faces a hard test. Length of marriage is a central factor in the unconscionability analysis under Family Code section 1612, and a long marriage with a large income gap is the classic setting in which courts refuse enforcement. If both spouses stayed employed and the waiving spouse can meet the marital standard of living, the waiver may still be upheld. Every case turns on the facts at the time of divorce.
Can my fiance and I use the same attorney to prepare the prenup?
Not if the agreement waives spousal support. Family Code section 1612 requires the waiving spouse to have independent counsel, and one attorney cannot independently represent both sides of the same contract. Each party should retain a separate lawyer, and the agreement should recite that fact and attach each lawyer's acknowledgment. A flat-fee prenup review is far less expensive than litigating the waiver later.
Can a California prenup waive child support?
No. Family Code section 1612 states that a child's right to support may not be adversely affected by a premarital agreement, and guideline child support under Family Code section 4055 is calculated at the time of the case regardless of the contract. Any clause that tries to cap, waive, or prepay child support will be ignored by the court.
How do I challenge a spousal support waiver in my divorce?
Raise it early in the case. The challenge is usually made when support is first requested, by asking the court to find the waiver unenforceable under Family Code section 1612 or the agreement involuntary under Family Code section 1615, supported by declarations about how the agreement was signed and your current circumstances on an FL-150 income and expense declaration. Who pays the legal fees for that fight can itself be addressed under Family Code section 2030, as explained in our guide to attorney fees in a California divorce.
Talk to a California spousal support attorney. Daniel Gramling, Esq. of Gramling Law Group drafts, reviews, and litigates premarital agreements and spousal support claims, with flat-fee and limited-scope options for prenup reviews and single hearings. Call (909) 654-4575 or contact us through this website. We serve the Inland Empire, the High Desert, Los Angeles County, Orange County, and Southern California. 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
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