The Evolution Of The Pre-Nup

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An unpublished opinion out of Orange County gives us a great primer of nuptial agreement law in California.

Raymond and Roberta met in 1984.   They got engaged.  Raymond insisted on a pre-nup.  “Raymond told Roberta his last divorce was very difficult and he did not want to pay spousal support.  Raymond explained he would not get married unless she signed a prenuptial agreement.  Roberta agreed to sign it.”

In August of 1985 the pre-nup got drafted, Raymond and Roberta signed it, and then they got married.  Pursuant to the terms of the pre-nup both parties waived the right to pursue spousal support should the marriage end.  Raymond was represented by an attorney during the drafting and signing of the pre-nup, Roberta was not.

In 2009 the couple broke up and started their divorce.  In a separate trial on the enforcement of the pre-nup the court considered whether the pre-nup was invalid.  The court determined it was not invalid.  The judge reasoned that the parties were on equal footing in terms of how much money they had, their intelligence, and their understanding of the terms.  The court noted Roberta’s alleged failure to read the Agreement was not grounds to set it aside.  It concluded, “I did not see any evidence of any duress, coercion, involuntariness, overreaching, or any of those other contract principles the court needs to consider for a 1985 [prenuptial agreement].”

However, the trial judge did invalidate the spousal support waiver portion of the pre-nup.

[A]fter considering the Higgason case, the relevant statutes, and In re Marriage of Pendleton & Fireman (2000) 24 Cal.4th 39 (Pendleton), the court concluded it must apply the law in effect in 1985.  It determined the legal authority in 1985, including the Higgason case, was very clear that waivers of spousal support were void as against public policy.  The court determined the Pendleton case, written after new legislation and legal amendments, did not overrule the Higgason case.

In addition, the court determined the spousal waiver was unenforceable as being unjust.  The court stated it found both parties were credible witnesses, however, “This is a long-term marriage of 20 years or so.  There is no dispute that at least during half of the marriage [Roberta] has not worked.”  The court stated Roberta stayed home to care for R. with Raymond’s “consent” and “encourage[ment].”

The Court of Appeal upheld the decision. For this particular case the law was clear:  in 1985 “any written waiver of the statutory obligation of spouses to mutually support each other was void as being contrary to public policy.”  This unpublished opinion is more important for the historical review it gives on the law of nuptial agreements.  The evolution of pre-nup policy and enforcement is explained, and the opinion demonstrates that there is a much different legal mindset on pre-nups now then there was in 1985.  Had Raymond and Roberta signed the same document subsequent to 2000 it very likely would have been enforced.

Please click here to read the Melissa opinion.

Please be sure to visit, the website for the law firm of Harding & Associates, for more information on California family law.

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