In January of 2013, the California Court of Appeals ruled on the case In re Marriage of Facter, 212 Cal. App. 4th 967, that the spousal support waiver that was present in the Facters’ prenuptial agreement was unenforceable because it is unconscionable. This holding set a precedent for California courts moving forward. In the Facter case, at the time the Premarital Agreement was signed, the wife was an unemployed high school graduate and single mother of two children. Meanwhile, the husband was an accomplished Harvard educated attorney who earned about $500,000 per year at the time of the prenuptial agreement. To get a better handle of the scope of this prenuptial agreement, here are some of the provisions it included.

• None of the property acquired during the marriage would be considered community property.
• Section 2 of the agreement detailed that upon dissolution of the marriage, wife would receive $100,000, plus an additional $100,000 dependent on certain factors. The factors included that if the marriage lasted at least 15 years and the husband was a partner at his law firm for at least seven years, wife would receive one half of the equity in the marital home, minus husband’s down payment and costs of sale. Wife would also receive the household furnishings and a Jaguar.
• The agreement stated that wife would waive her right to spousal support.
• The agreement also stated a limit on the amount of any child support, and stated that each party would pay their own attorney fees.

When the prenup was challenged in court by the wife, the California court held that the waiver of spousal support was unconscionable because of the dramatic disparity in the husband and wife’s “respective incomes and assets at the time they entered into the Agreement,” and the court further reasoned that there existed “a significant inequality of bargaining power.” The court reasoned that the husband and wife’s financial situations if the contract was enforced would also make the spousal support waiver “unjust.” The court detailed their reasoning, citing that the husband had amassed approximately ten million dollars in assets and earned one million dollars per year at the time of divorce, while the wife remained unemployed and had no separate assets of her own during the marriage.

This case is JUICY. (We’ll skip the salacious details but you can check out the full read here!) Aside from the real housewives level drama, this case clarified a really important point of law for California prenups. Since 2002, California courts have been invalidating spousal support provisions which are considered to be unconscionable at the time the parties seek enforcement (i.e. upon separation/divorce). While we know this is the case for prenups entered into after that time, what about prenups predating 2002? Well, the Zucker case is here to clear things up!

Mr. and Mrs. Zucker got hitched in 1994. While the couple was dating, Mrs. Zucker became pregnant and wanted to get married. Mr. Zucker was slightly hesitant. He had acquired decent wealth and would only agree to marry if his future wife would sign a prenup. She agreed and the couple wed. The prenup limited Mrs. Zucker’s spousal support to $6,000 per month with a one-time payout of $10,000. Mr. Zucker would also get to keep the couple’s home in the event of divorce.

After 17 years of marriage and six children, the couple called it quits. At this point, Mr. Zucker had a net worth of approximately $32 million. In contrast, Mrs. Zucker was unemployed, having opted to stay home and raise the couple’s children during their marriage. Mrs. Zucker challenged the validity of the couple’s premarital agreement arguing that it was unconscionable considering the current disparity in the couple’s finances. Mr. Zucker, however, argued that all that mattered was whether it was conscionable at the time the couple entered into the agreement (before he accumulated the bulk of his wealth).

The court ultimately agreed with Mrs. Zucker. It was discovered during the court proceedings that in order for Mrs. Zucker to maintain a similar lifestyle to that which was established during her 17-year marriage, she would need around $37,000 per month. The $6,000 monthly support provided by the premarital agreement was considered unconscionable at the time of the couple’s divorce. Specifically (and importantly!), it was considered to be contrary to public policy. As a result, the spousal support provision was invalidated.

Moral of the story: Now all prenups entered into after 1986 can be invalidated by California courts if they contain provisions limiting spousal support which are considered to be unconscionable at the time of enforcement.

The Barry Bonds case is a California Prenuptial Agreement case that was decided in 2000 by the California Supreme Court. The Bonds case is considered one of the most famous prenup cases in California because it forever changed how prenups in the state would be drafted. Barry Bonds, the San Francisco Giants baseball player and his then-wife Sun married in 1988. Before the couple married, Bonds asked Sun to sign a prenuptial agreement, stating that Sun would waive the right to any of Bonds’ income, earnings, or acquisitions during their marriage. At the time, Bonds was earning a significant sum.

Bonds hired an attorney to draft the prenuptial agreement, and Sun signed the agreement without consulting or hiring an attorney. Fast forward six years and two children later, and the couple filed for divorce. At the time of divorce, Bonds’ salary had increased significantly. On the other hand, Sun did not work during the marriage. Prior to the marriage, she had worked as a waitress and bartender, and had at some training in cosmetology. However, none of these jobs were likely to earn her income approximating that of her husband, a famous baseball player. Even though Sun had been unemployed at the time she signed the premarital agreement, she had voluntarily waived any interest in her husband’s earnings over the course of the marriage.

As expected, Sun fought to have the California prenup declared unenforceable and to have alimony instituted. Her attorneys argued that the provisions of the agreement could not be enforced because she had no lawyer at the time she signed the agreement. The Superior Court upheld the prenuptial agreement, and Sun appealed. The decision of the lower Court was reversed. After an appeal by Bonds to the Supreme Court of California, the case was decided in favor of Bonds and the Prenuptial Agreement was enforced. The Court concluded that the agreement was valid and was voluntarily entered into by both parties prior to their marriage, and thus should be enforced. This decision lead to wide media coverage and an outcry of public opinion in favor of Sun.

Life before Bonds…

Before the Bonds case, California courts recognized prenuptial agreements if they were signed by both spouses, even parties that were not represented by their own attorneys. The Bonds case received notable press, and the public sided very clearly with Sun. Since the Bonds case that inspired change in California law, prenuptial agreement requirements in California are now much more clear. The case spurred a change in legislation in California, and the California Family Code Section 1615 was born.

Specifics about Divorce in California: The following excerpt is taken from the CA Family Code, s.2010: In a proceeding for dissolution of marriage…or for legal separation of the parties, the court has jurisdiction to inquire into and render any judgment … concerning the following:

• The status of the marriage
• The custody of minor children of the marriage. The support of children for whom support may be ordered, including children born after the filing of the initial petition or the final decree of dissolution.
• The support of either party.
• The settlement of the property rights of the parties.
• The award of attorney’s fees and costs.

For the entire fine print, review Cal Fam Code §2010

Residency requirements: Each state has residency requirements that must be fulfilled before you can divorce in that state. In California, these are the residency requirements:

• You or your spouse must have been a resident of California for at least six months prior to filing for dissolution
• You or your spouse must have lived in the county where your dissolution will be filed for at least three months prior to filing

“Dissolution of marriage” is the term used in California to refer to a divorce.

A dissolution of marriage occurs when two people, who have been legally married, begin the court process to have the marriage ended.

In some states, the term “dissolution of marriage” refers to the general process of a divorce. In other states, the term “dissolution” is used in reference to a “no-fault” divorce, whereas the term “divorce” refers to a “fault” divorce.

It's important you understand that certain legal terms can refer to certain processes that differ greatly per state. In California, the term “dissolution of marriage” is often used in place of the more commonly used term “divorce.”

By default, California is a “no fault” divorce state – meaning, either party can file for a divorce without having to prove that the other party did something “wrong” to justify the dissolution of the marriage (these are called “fault grounds.”)

Unlike some states, California does not have a minimum legal separation period required before filing for a dissolution of marriage.

To proceed with a no fault divorce, only one party of the marriage needs to state that the marriage is not working out, and thus claiming “irreconcilable differences.”

For the entire fine print review Cal Fam Code §2024