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Is a waiver of spousal support enforceable in a Prenuptial Agreement enforceable under California law?
Wiki User
∙ 15y ago
See the FAQ section at www.laprenuplawyer.com. Historically, waivers of spousal support were considered to be unenforceable in California. But in 2000 the California Supreme Court reexamined California's long-standing policy against such waivers of spousal support in In re Marriage of Pendleton & Fireman, 24 Cal.4th 39 (2000) . In that case, the Supreme Court found that when entered into voluntarily by people who are aware of the effect of the prenuptial agreement, a premarital waiver of spousal support does not offend contemporary public policy. In response to the Pendleton decision, the California Legislature promulgated new regulations that limit when modifications or waivers of spousal support in prenuptial agreements may be upheld. Section 1612 (c) of the Family Code now provides that any provision regarding spousal support, including a waiver, will be unenforceable if either party against whom enforcement is sought was: (1) unrepresented by independent counsel at the time the agreement was executed, or (2) if the provision is unconscionable at the time enforcement is sought. It is impossible to predict what circumstances might someday cause a Family Law judge to conclude that enforcing a spousal support waiver would be "unconscionable." While we can surmise with a high degree of certainty that if, after a 10-year marriage, one party is worth one billion dollars and the other party has no assets is unemployed, and is completely disabled, enforcement of a spousal support waiver would likely be deemed to be unconscionable. On the other hand, at the other extreme, we can say with equal confidence that if, after a one-year marriage, both parties have assets of equal value and comparable incomes, enforcement of a spousal support waiver in a prenuptial agreement would not be deemed to be unconscionable. Between these two extremes, we can only speculate where a Family Law judge might draw the line between "conscionability" and "unconscionability." Unfortunately, since Section 1612 of the Family Code was amended by the California legislature in 2002, there has been little case law that addresses
under what circumstances a Family Law judge is likely to find a waiver of spousal support to be "unconscionable." Until a more developed body of case law emerges that addresses this important issue, it is impossible to predict under what sort of circumstances a provision in a prenuptial agreement dealing with (or waiving) spousal support is at risk of being struck down on the grounds that it is "unconscionable."
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∙ 15y ago
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What does a prenuptial agreement lawyer do?
A prenuptial agreement lawyer assists couples in the drafting of prenuptial agreements before they decide to get married. These are formal contracts entered into by the couple, and can include agreements on the division of property and spousal support in the event of the marriage ending.
What is a prenuptial agreement?
A prenuptial agreement is written prior to marriage. It is an agreement by the people intending to marry about the divisions of property and spousal support if the pair end up deciding to divorce.
Understanding the Importance of a Prenuptial Agreement?
A prenuptial agreement, more commonly known as a prenup, is a contract between two individuals who intend to marry or enter into a civil union. This contract, which is created prior to the union, outlines what will happen should the couple get divorced. Prenuptial agreements usually dictate how the couple will split their assets, property and handle spousal support. This agreement might also include provisions penalizing an unfaithful spouse or dictate certain spousal responsibilities. The main thing a prenuptial agreement may not contain is terms regarding the future custody or visitation of a child.How to Determine If You Need a PrenupPrenuptial agreements are used to protect the finances of both parties in case of divorce. Divorce can take a huge toll on a person's financial security. Without a prenuptial agreement, an individual might lose valuable assets he or she worked hard for prior to the marriage.Still, it can be difficult to determine whether a person really needs a prenup. Contrary to what many people believe, these agreements are not just for the rich. Generally speaking, anyone with valuable assets, like a home or retirement fund, should seriously consider a prenuptial agreement. Business owners, breadwinners, future breadwinners and people with dependents from a previous relationship should also consider a prenup. If you fall into one of these categories, forgoing a prenuptial agreement might strip you of your rightfully earned income or assets should you get divorced.How to Create a Prenuptial AgreementFor a prenuptial agreement to be valid, it must be in writing, created voluntarily and be reasonably fair to both parties. Neither party can attempt to hide certain terms or deceive their future spouse. To prove the agreement is authentic, both parties must sign the document in front of a notary public.While these requirements are fairly straightforward, writing a prenuptial agreement can be difficult. To create this agreement, individuals protecting large assets should consult an experienced attorney. In this case, both parties should consult their own attorney to ensure the agreement is in their best interests.Couples protecting more conservative assets can sometimes create their own contract using state-specific templates and forms. These forms are almost entirely written and allow couples to simply fill in the blanks. As long as your prenuptial agreement meets your state requirements, choosing to create your own contract or using an available template will save you both money and time.
Is a California order for spousal support legally enforceable in North Carolina?
The US Constitution requires States to give "full faith and credit" to the laws and orders of other States. However, the mechanisms for enforcing spousal support are much more limited than those for enforcing child support.
When can spousal support be terminated?
The termination of spousal support is determined by the court and is generally set forth in the separation agreement that is incorporated into the divorce decree. You need to review the decree.The termination of spousal support is determined by the court and is generally set forth in the separation agreement that is incorporated into the divorce decree. You need to review the decree.The termination of spousal support is determined by the court and is generally set forth in the separation agreement that is incorporated into the divorce decree. You need to review the decree.The termination of spousal support is determined by the court and is generally set forth in the separation agreement that is incorporated into the divorce decree. You need to review the decree.
What is a prenumpt?
A prenuptial agreement is a contract signed before marriage specifying particular matters about the marriage or in preparation for the marriage to break up. It may specify how property is divided in a divorce, specify where the couple will live, or how much spousal support will be paid. In general they are used when one person in the marriage feels that they have assets that they wish to protect in the event that the marriage fails. It's a contract signed before a marriage, and it determines who will get what in case of an divorce. Withiout a prenuptial agreement a divorce settlement can go to the court instead, which can turn out nasty for the one of the spouses that had most money before they married.
Is there statute of limitations on 262pc?
California penal code 262 is spousal rape. The statute of limitations for spousal rape in California is 10 years from the date of the offense.
Is a spousal support award enforceable by law?
Yes, but the "extraordinary remedies" available to collect child support (interception of Federal and state payments, liens on real and personal property, etc.) are not available to collect unpaid spousal support.
Can you get a divorce in California without spousal consent?
Yes, you can get a divorce in California without spousal consent. California is a "no-fault" divorce state, which means that either spouse can request a divorce without needing the consent or agreement of the other spouse. However, the other spouse will still need to be officially served with divorce papers and has the right to respond to the request.
How to Prepare a Prenuptial Agreement?
When preparing for marriage, it may be a good idea to consider a prenuptial agreement, or an antenuptial agreement. This document is also referred to as a premarital agreement and can assist both parties entering into the marriage with protecting assets and determining debt responsibility in the event of death or divorce.1. The couple should first discuss between themselves honestly and openly so that there are no surprises upon actually preparing the agreement.2. Both parties may want to acquire an attorney or legal representative or have the opportunity to seek their own individual counsel before the agreement is finalized.3. Prepare a list of all of the assets, liabilities, income and any planned inheritances. Everything must be disclosed and included in the prenuptial agreement. Determine who will be responsible for debt that occurs during the marriage, whether it will be based upon the individual or as a couple.4. Residences and real estate should be included as well as ownership. The parties will also need to determine or agree upon who will own the property in the event of a divorce and whether or not the original owners will retain ownership.5. All agreements must be made in writing and will often need to be witnessed and notarized. In order to ensure that a prenuptial agreement is binding and enforceable, it will need to be looked at by an attorney.Other Points to Consider•Premarital assets and liability and what exactly each party is bringing into the marriage.•Potential death benefits and life insurance and how they will be distributed.•Whether or not spousal maintenance and future alimony will occur in the event of a divorce.What a Prenup Will Not CoverPrenups cannot contain or cover illegal activity nor can it include anything that goes against public policy. Further, a prenuptial agreement does not usually contain non financial matters like child care and household matters.It is important to remember that prenuptial agreements are not just for the rich and famous. If one party has significantly more assets or liabilities than the other or if there are children from a previous marriage, a prenuptial agreement can benefit and protect both parties. They are most often looked upon as anticipating failure of the marriage, but alternatively should be accepted as a form of insurance or protection for all parties involved.
What did Ric Flair get arrested for?
Ric Flair was arrested for multiple counts of failing to follow through on his spousal support agreement.
What is a pre-nup?
Prenup is the term for a legal contract drawn up between two people before they marry that specifies what will happen if the marriage beaks up. Prenups usually deal with financial matters such as lump sum settlements or spousal maintenance payments.
