While researching cases for premarital agreement, I came across a case in 2000 where the California Supreme Court was asked to rule on whether couples to be married could waive spousal support (alimony) in a premarital (or prenuptial) agreement.  The case is Marriage of Pendleton which you can find by going to the state’s case archive and typing in the citation 24 Cal. 4th 39.  The opinion’s author, Justice Marvin Baxter, found it necessary to discuss the current marriage contract which I alluded to in my last post.  He wrote:

“…the common law policy, based on assumptions that dissolution of marriage is contrary to public policy and that premarital waivers of spousal support may promote dissolution, is anachronistic.

I’d like to unpack this extraordinary statement about the divorce laws in layman’s terms.  Justice Baxter is saying:

1.  The courts used to follow a “common law” doctrine that the divorce laws should not be interpreted in a manner that encourages divorce.  “Common law” refers to the ancient law, handed down from our English forefathers, a law refined and honed over centuries by appellate case decisions.

2.  Justice Baxter believed that the rule against spousal support waivers has become “anachronistic,” a fancy word meaning behind the times, or not applicable to the present day.

3.  Therefore, it doesn’t matter that the ability to opt out of the standard marital contract (by means of a prenup) may encourage divorce; the times have changed, as divorce is no longer something the law tries to discourage.

Hold your horses.  If public policy no longer discourages divorce, why should a support obligation arise from a divorce as a continuation of promises made during the marriage ceremony?

The law is that the moneyed spouse must pay spousal support to the non-moneyed spouse according to the factors set forth in Family Code section 4320.  But during negotiations, it is important to understand the paying spouse’s feelings so that they don’t block our ability to resolve the issue.

The problem is, if “until death do us part” is an anachronism, it feels unjust for a party to continue a support obligation that arose from the marriage.

During settlement discussions related to spousal support, supporting spouses would do well to understand that the support obligation is not designed to be fair or achieve justice.

And, supported spouses would do well to acknowledge the supporting spouse’s feelings, even if they are legally irrelevant, so that you can get past the emotions and talk business.

Hoping this little tip helps you reach resolution of these difficult issues, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

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