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Premarital Agreement and Waiver of Spousal Support..


The short answer is “yes” especially if the provision regarding spousal support is unconscionable at the time of enforcement.

Read the entire article to have a better understanding.

A premarital agreement is an agreement between prospective spouses in contemplation of marriage regarding their marital rights and responsibilities. It becomes affective upon the marriage of the couple.

Usually parties’ intent is to avoid and/or alter applicability of California community property law to assets and income to be acquired or earned during marriage.

For example, parties can agree that the earnings and accumulation of each party during marriage will remain that party’s separate property.

Formalities, which have to be met:

  1. A premarital agreement has to be in writing and signed by both parties.

    a. It is not mandatory to notarize parties’ signatures, but strongly advisable.

  2. No consideration required:

    a. A premarital agreement is enforceable whether or not it is supported by consideration.

  3. Recordation:

    a. If a premarital agreement affects real property interests it is strongly advisable to record the premarital agreement, but it is not mandatory.

Permissible subjects of premarital agreement:

  1. The parties’ rights and obligations in any real and/or personal property, including income and earnings.
  2. The ownership rights in and disposition of death benefits from a life insurance policy.
  3. Waiver or limitation of post dissolution spousal support. Please see additional information below.
  4. Choice of law governing construction of the agreement.
  5. Any other subjects not in violation of public policy or a statute imposing a criminal penalty.

Barred subjects of premarital agreement:

  1. Agreements to pay by one spouse to the other for domestic services, care or companionship.
  2. Agreements altering mutual obligations between spouses of respect, fidelity and support during marriage.
  3. Agreements to raise children in particular religion.
  4. Agreements penalizing party for “fault” during marriage.
  5. Agreements to waive in advance the mandatory declaration of disclosure obligations in marital status actions.

Statutory limitations of scope of premarital agreements and enforceability of specific terms:

    1. Premarital agreements cannot abrogate statutory child support duty.
    2. Spousal support provision:a. Spousal support provision is unenforceable if the party against whom enforcement is sought was not represented by independent counsel at the time the premarital agreement was signed.b. Or if the provision regarding spousal support is unconscionable at the time of enforcement.c. Additionally, independent legal representation does not insulate a spousal support provision from attack on grounds of involuntarily execution, unconscionability at the time of execution or other recognized contract defenses.
    3. Premarital agreements have to be executed voluntarily.
    4. Premarital agreements have to be conscionable when they are executed.
    5. Waiver of surviving spouse rights in deceased spouse’s estate might be unenforceable. Please call me to learn more.
    6. Waiver of qualified plan joint and survivor annuity and/or survivor benefits might be unenforceable. Please call me to learn more.
    7. Waiver of marital property interest in ERISA pension plan at dissolution might be unenforceable. Please call me to learn more.

After marriage, premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.

Parties cannot waive or limit spousal support obligations after marriage.
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Please contact me at 619-737-3919 to schedule a 30-minute initial complimentary consultation to discuss your personal situation.

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Ms. Rogova, who is bilingual English-Russian, earned her law degrees from American and Russian universities. She earned her Russian law degree in 2003 and practiced law in Russia for over 7 years. Ms. Rogova has a broad range of legal experience in Russia such as contract litigation, corporate law, arbitration, real estate, and labor law. In addition to her law degree, in 2007 Ms. Rogova earned a Master of Finance degree.

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