Can spouses that have not yet separated limit their spousal support rights?


Family Code section 3580 et seq. provides that spouses may enter into agreements regarding support upon separation. In Pendleton and Fireman, our Supreme Court held that parties could agree to limit or waive spousal support in premarital agreements. What about the time in between? Can married spouses who have not yet separated enter into enforceable agreements to limit or waive spousal support?

Although the answer to this question has not been definitively settled by our appellate courts, there is a strong argument to be made that married couples who have not yet separated cannot agree to limit or waive spousal support.

This is because Family Code section 1620 provides that “[e]xcept as otherwise provided by law, a husband and wife cannot, by a contract with each other, alter their legal relations, except as to property.

One might argue that the definition of “property” would also include spousal support. However, the official comment to Family Code section 1620, which explains some of the background regarding the law, specifically excepts support agreements under Family Code section 3580-3592 from the general rule that spouses can only contract as to property:

“Section 1620 does not purport to limit the statutory and case-law exceptions to the rule stated in this section. A more extensive list of exceptions to this rule includes, for example, Sections 2550 (agreement concerning division of community estate), 2641 (agreement concerning community contributions and loans for education or training of spouse), 3580-3592 (support agreements), 3651 (modification or termination of support order if agreement between parties on support), 4302 (spouse living separate by agreement), 4323 (agreement regarding effect of cohabitation on spousal support), 4337 (unless otherwise agreed by parties in writing, support obligation terminates upon death of either party or remarriage of supported party). (Comment to Fam. Code § 1620; emphasis added.)”

In other words, it implies that these types of support agreements would be forbidden if it weren’t for Family Code sections 3580-3592.

It is important to note that Family Code section 3580-3592 explicitly requires a separation of the parties. “The right of husband and wife to agree in writing to separate and provide for spousal support both during separation and on dissolution of the marriage continues to be expressly recognized by statute (§ 3580.)” (Marriage of Pendleton and Fireman (2000) 24 Cal.4th 39, 52; emphasis added.) Family Code section 3580 provides that the “parties may agree to separate and make provision for support during separation and on dissolution.” (10 Witkin, Summary 10th (2005) Parent & Child, § 389, p. 491; emphasis added.)

Since there is no statute that explicitly authorizes support agreements made before the parties have the separated, it would seem that such agreements are forbidden.

Whether or not such orders are enforceable is not a simple topic, and would likely require educating the judicial officer in your case.  The attorneys at Bickford Blado & Botros have experience necessary to address these types of complex cases.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding military divorce. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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