California law is fairly straightforward with respect to premarital agreements that seek to alter community property rights in the event of a divorce. But it is unclear and unsettled with respect to those agreements that seek to limit or waive spousal support. Although California prohibits courts from enforcing premarital waivers of spousal support if it would be unconscionable to do so at the time of enforcements, courts have not articulated a clear standard for what that means. California made its first attempt to do so in In re Marriage of Facter. This Article considers that decision in illustrating how current law, which does not clearly define unconscionability, allows courts to arbitrarily decide when such a waiver is fair. This Article argues that, instead, courts must consider the balance between freedom of contract and public policy embodied in the California Family Code. Finally, this Article concludes by proposing a set of policy-based guidelines that courts and the legislature can consider in determining the enforceability of such waivers under existing law.
J. Nicholas Marfori, For Richer, Not Poorer: Premarital Waivers of Spousal Support in California, 49 LOY. L.A. L. REV. 843 (2016).