The Uncertainty of Spousal Support Waivers

Stephanie Barnett wrote an article published in The Recorder on Feb. 15, 2013 about waivers or limitations on spousal support and the uncertainty surrounding them. Barnett’s article discusses a series of court decisions that have dealt with the enforceability of such waivers. The most recent, In Re Marriage of Facter, laid out some of the facts and circumstances under which a spousal support waiver is considered unconscionable and unenforceable.

In the Facter case, the wife did not work and had no property of her own when the couple split, while the husband earned about about $1 million annually. The court found that the waiver was unconscionable because the property the wife was to receive in their divorce was “manifestly inadequate.”

In order to create spousal support waivers with teeth, practitioners must, most importantly, create fair agreements, Barnett advises.

“When advising a bride-to-be or groom-to-be, practitioners should continue to warn clients that spousal support waivers are an evolving area of law with great uncertainty,” Barnett wrote. “However, Facter now provides us with at least one example of a specific set of facts that caused a California court to determine that a spousal support waiver was unconscionable and unenforceable.”

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