The California Legislature in 2002 amended Family Code section 1612 to invalidate any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of such support if (i) the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed or (ii) that provision is unconscionable at the time of enforcement. (§ 1612, subd. (c).)
In a published opinion for a case out of San Diego County the issue -- which had not been previously decided in this state—is whether subdivision (c) of section 1612 applies to a premarital agreement executed before 2002.
The facts of the case are vital. Michael and Pamela got married in 1999, before § 1612, subd. (c) was amended. They both signed a pre-nuptial agreement that included a mutual waiver of spousal support. At the time the pre-nup was negotiated and signed only Michael was represented by an attorney. They divorced in 2008, after the amendments were in place. Michael wanted the spousal support waiver enforced, Pamela did not. Under the old law the spousal support waiver would be enforced. Under the new law it would not because Pamela did not have an attorney when the pre-nup was negotiated and signed.
Thus the important legal question to be answered: does the statute apply retroactively?
The Court writes:
We conclude the enactment of subdivision (c) of section 1612 constituted a material change in the law regarding the enforceability of a spousal support waiver in a premarital agreement and was not merely the result of a legislative attempt to clarify the true meaning of a statute. (See Williams v. Garcetti (1993) 5 Cal.4th 561, 568; see also In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1440 ["A statute that creates new obligations by raising a standard of care and imposing, for the first time, a specific penalty for breach of the new standard, constitutes more than a simple clarification of existing law; it manifests and intent to change it."].)
The distinction is important because an amendment that simply clarifies existing law can be applied retroactively. An amendent that rewrites the law and changes it cannot be applied retroactively, unless the Legislature intended for it to be applied retroactively.
The Appellate Court decided that the Legislature did not intend for the amendment to apply retroactively when it wrote: "Our review of the legislative history shows the Legislature did not intend subdivision (c) of section 1612 to apply retroactively."
Finally the Court decided that Pamela's waiver of spousal support is enforceable:
In light of the trial court's findings, which are supported by ample evidence in the record, and based on the law as it existed at the time the parties executed their premarital agreement, we conclude on this record that Pamela, despite not having independent counsel at the time she executed that agreement, knowingly and voluntarily waived her right to spousal support in that agreement. (See Pendleton, supra, 24 Cal.4th at p. 53 ["[W]hen entered into voluntarily by parties who are aware of the effect of the agreement, a premarital waiver of spousal support does not offend contemporary public policy."]; Bonds, supra, 24 Cal.4th at p. 6 [the "circumstance that one of the parties was not represented by independent counsel is only one of several factors that must be considered in determining whether a premarital agreement was entered into voluntarily."].)
There you have it. The spousal support waiver in pre-nups negotiated and signed before 2002 is not automatically unenforceable.
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