The recent case of In Re The Marriage of Facter (2013) DAR570 (decided January 14, 2013) makes it much more difficult to enforce spousal support waivers in a premarital agreement especially when there is a gross discrepancy in the financial circumstances of the parties particularly where there are children during their marriage. However, the court also In Facter, supra, upheld what would otherwise be a grossly inequitable division of the assets that were set forth in the premarital agreement. Therefore, it would appear that property settlement provisions in a premarital agreement are strengthened In Facter while spousal support waiver provisions in a premarital agreement are weakened. Accordingly, when preparing a premarital agreement, when representing the spouse who has the higher assets, a lawyer should draft provisions which will result in the client obtaining the lion’s share of the assets both brought into the marriage and accumulated during the marriage while placing less exposure on the support provisions of the premarital agreement. On the other hand, in representing the lower income and lower asset spouse, a lawyer will want to strive towards placing a higher emphasis on the support provisions of the premarital agreement by, for example, obtaining significant assets in return for a spousal support waiver since the waiver probably won’t be enforceable anyway.
John J. Gilligan, partner of Brandmeyer Gilligan & Dockstader, LLP, has extensive experience specializing in California family law, and estate planning. Mr. Gilligan is certified by the State Bar of California, as a certified family law specialist since 1997.