California Pre/Post Marital Agreements: April 1998 Summary

Legal Developments

In re Marriage of Pendleton and Fireman

On March 26, 1998, the Court of Appeal for the Second Appellate District filed In re Marriage of Pendleton and Fireman. The court held: "Spousal support waivers and limitations contained in written premarital agreements are not contrary to public policy and are not per se unenforceable." Previously, all California courts had held that waivers of spousal support in premarital agreements were void as against public policy. (The entire text of the case is reproduced in Lawgic's Resources. See the commentary accompanying the questions listed below for a more detailed discussion of the case.) Although Pendleton and Fireman is not final and it is expected that the case will be appealed, this update allows you to draft a waiver or limitation of spousal support.

The authors recognize that many users may want to include spousal support waivers or limitations in their agreements. For reasons addressed in their commentary, the authors continue to warn against including spousal support waivers or limitations without making the client aware of the substantial risk in doing so. Options include a stand-alone waiver; a waiver explicitly in consideration for a gift upon marriage, annual gift, or lump-sum termination payment; and/or a waiver in consideration for monthly spousal support payments of a specified amount and duration. In addition, you can use the "Draft custom provision" option to draft additional paragraphs, e.g., to place additional conditions or limitations on the waiver. As always, we will try be responsive to your comments on this issue in future updates, and in particular would be interested in hearing about the types of limitations and conditions you place in your waivers.