As a San Diego attorney, clients with premarital agreements often ask whether the spousal support waiver provision in their premarital agreement is enforceable. Whether my client wants to enforce the agreement or have it not enforced, the answer is – it depends.

The Premarital Agreement Act applies to premarital agreements executed after January 1, 1986. For a spousal support waiver to be valid, it must pass the “representation by counsel” and “not unconscionable” requirements.

If the party against whom enforcement of the spousal support waiver provision was not represented by independent counsel at the time the premarital agreement was signed, then the spousal support waiver is not valid. This means: (1) if the parties prepared the agreement themselves without legal counsel, the waiver is not valid; or (2) if Party A wants to enforce the waiver against party B, and Party A was represented by independent legal counsel but Party B was not, the waiver is not valid.

If the representation by counsel requirement is met, then the court determines as a matter of law whether the spousal support waiver is “unconscionable”. Factors the court considers in making its decision include: (1) whether there was a fair, reasonable and full disclosure of the property or financial obligations; (2) whether the parties waived in writing any right to disclosure of property or obligations beyond what was disclosed; (3) whether a party did not or could not have had adequate knowledge of the other party’s property or financial obligations; and (4) other current circumstances that make the waiver unconscionable at the present time.

Even if all these requirements are met, a court can set aside the entire premarital agreement if it was not executed voluntarily. Factors for whether a premarital agreement was voluntarily executed include: (1) if the agreement was first presented at least seven days before it was signed; (2) any duress, fraud, or undue influence; (3) whether both parties had capacity to enter into the agreement; and (4) any other factors the court deems relevant.

An example of other factors / current circumstances that might make a spousal support waiver unenforceable is if one party recently had an accident, is now paralyzed and cannot work or support himself or herself, the court could find the provision to be unconscionable.