Spousal support is probably one of the most talked about issues when it comes to divorce. It is one of those issues that is never resolved satisfactorily. The spouse who pays it always pays too much, and the spouse who receives it never gets enough, and certainly not for long enough. Once it has been set it seems to be the subject of ongoing strife. The paying spouse (and frequently their new "significant other) awaits the day the last check is to be sent, which never arrives early enough. The spouse receiving it thinks the date should be extended. It is not uncommon for the parties to go back and forth in the interim arguing over the amount and whether it should be adjusted. To be sure, the appellate courts of our state have not consistently determined how to handle it.

Now comes a new twist. Prior to last month it had been the generally accepted state of the law in California that in drafting a prenuptial agreement there could be no provision made concerning the issue of spousal support. Although parties could contract concerning the property issues that would arise in their upcoming marriage, and although they could negotiate their own arrangement concerning liabilities to modify existing community property law, they could not negotiate any terms concerning the future disposition of spousal support.

Now that may be changing. In the recent decision of Pendleton v. Firestone, the Court of Appeal for the Second District determined that spousal support is something that may be addressed in a prenuptial agreement. Unfortunately, although the decision potentially opens the door for a potential resolution of this issue in advance of marriage, the Pendleton case does not completely resolve the issue. Nonetheless it is something to consider and it creates a potential problem for persons about to enter into a prenuptial agreement and their lawyers.

Prenuptial agreements in California are governed by the state enactment of the Uniform Premarital Agreement Act which is in effect in most jurisdictions. The Act gives parties the power to contract on just about all issues of a financial nature, but is silent on the issue of spousal support. California case law held that a prenuptial agreement which addressed spousal support provisions was void as against public policy because it was "promotive of divorce". In other words, negotiating spousal support in advance could give one spouse an incentive to divorce sooner, rather than later, especially if divorcing sooner meant less of a financial liability in terms of the payment of support.

In the Pendleton case, the appellate court saw no reason to follow that line of thinking. Society has changed and divorce is significantly more prevalent today than it was when the first cases addressed this issue at the beginning of this century. Moreover, the treatment of divorce in a legal sense has changed as well. The legislature abolished the requirement that grounds be proven for a divorce years ago. With the abolition of fault, also came the abolition of the concept of unequal division of property in order to compensate the aggrieved spouse. If women (the traditional recipients of spousal support) were now equals in society, there seemed no logical reason that they should not be able to contract regarding this issue, and they no longer needed the protection of the courts in said regard. With that in mind, the appellate court felt that there was no logical reason to deny parties the ability to contract on this issue, just as they had the ability to contract on other issues relating to the marriage.

Furthermore, a review of the state of the law around the country revealed that many states now permitted the contracting of an agreement concerning support. In fact, only four states expressly precluded it.

Having considered all of the foregoing, the court found that there was no logical reason to continue the policy prohibiting contracting spousal support rights.

However, that does not resolve the issue entirely. While the appellate court determined that such a contract is not violative of public policy per se, it did not state that the specific provision addressed in the Pendleton case was enforceable. Rather, the court remanded that case to the trial court to determine whether or not it would enforce the provision in this particular instance.

In Pendleton two wealthy and well educated individuals signed a prenuptial agreement that waived spousal support in the event of a divorce. In the course of the divorce proceedings, the wife asserted that the waiver was invalid under California law and unenforceable. She requested an order for spousal support. At the time of trial, Husband objected to the payment of support based on the terms of the prenuptial agreement. The court overruled his objections and ordered support for the wife, believing the waiver to be unenforceable. That ruling resulted in the appeal.

Unfortunately, the appellate court did not give any guidance in terms of what would and would not constitute an enforceable waiver. Having left the question open, the court has failed to give direction to persons signing such agreements in the future. We do not yet know what the components for an enforceable waiver will be. Those components may include the typical "knowing and intelligent" requirement applied in other contexts. In plain language this means that the "waiving spouses" are aware that they are giving up the right, and at the same time the consent to give up the right is understood. However, there is an entirely separate body of law on what constitutes a valid waiver in other situations and we do not yet know how that may affect these agreements.

Web Site Successful

In our last newsletter, we told you about the launching of our own website, devoted specifically to our firm. The site was launched in mid-1997 and we have obtained significant positive feedback from many of the people who have investigated the site, including clients. In fact, the site seems to have resulted in the increased use of e-mail by clients and others with whom we do business. The volume of our incoming and outgoing e-mail, as well as inquiries to the site have increased exponentially. In continuing to to remain at the cutting edge of this new technology, which we believe will benefit our friends and clients as well as our staff, we are always interested in your suggestions. At present, we are making changes to the site to include more up-to-date information. The first such change is the addition of our periodic newsletters and a means to search them for specific articles of interest. There are other additions which you will also see in the coming months. If you have not seen the site yet, be sure to point your browser to "www.fspclaw.com", and rop us an e-mail with your current e-mail address by sending to: "freds@fspclaw.com".