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Writing a prenuptial agreement

Can a Prenuptial Agreement Help You Avoid Paying Spousal Support?

There are many reasons why you may wish to enter into a prenuptial agreement before marriage. You might have property you want to keep separate or certain assets you would like to protect. What about financial support though? Can a prenuptial agreement protect you from paying spousal support? Today, we go over the answer to this question and how you could avoid paying spousal support after a divorce.

Giving Up the Right to Spousal Support

A couple can agree to modify, or even give up, the right to spousal support in a prenup, if doing so would not be considered unconscionable or extremely unfair. There are no direct guidelines for determining what unfair really means, but here are some considerations that could help:

  • If one spouse would be unable to afford housing, while the other’s income level is extremely high, spousal support would be required
  • If one spouse would need to turn to welfare, while the other has ample means to provide support, spousal support would be required

The court also will not usually waive spousal support requirements unless both spouses have the same level of education, intelligence, self-sufficiency in property, and similar earning abilities at the time the prenup was created. To get a better understanding of what unfair means, it would be beneficial to speak to an experienced divorce lawyer.

Will You Need to Support Your Spouse if He/She Waived the Right to Spousal Support in a Prenup?

According to California’s Uniform Premarital Agreement Act, a spouse can waive his/her right to spousal support; however, the court must find that the prenup is not unfair. The court will look at various factors including but not limited to the following to determine this:

  • Disparity of wealth
  • Separate property of each spouse
  • Earning potential of each spouse

If the prenup is found to be unfair, the court will not waive your spouse’s right to spousal support, and you will still be required to pay your spouse. Additionally, if your spouse did not understand that he/she was signing away his/her right to spousal support in a prenup, the court may not enforce the prenup. This can happen when an individual signs a prenup without consulting with an attorney.

If you need assistance generating a prenup, contact our firm online or call us at (949) 577-7935.

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