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The original American Idol and singer of “Since U Been Gone” Kelly Clarkson has recently filed for divorce in Los Angeles Superior Court from her husband of seven years Brandon Blackstock, according to media reports. While little is known about the underlying situation, Clarkson’s petition for dissolution indicates that she is both seeking to avoid paying spousal support to Blackstock (and, yes, women can and do pay spousal support to ex-husbands in many situations) and to enforce the terms of a 2013 prenuptial agreement entered into by the parties.

The terms of the 2013 prenuptial agreement are not explained in Clarkson’s petition, and generally prenuptial agreements are kept confidential between spouses and their attorneys, but, given Clarkson’s massive wealth and income and California’s liberal spousal support laws, it is likely the case that the prenuptial agreement does deal with the issue of spousal support, which raises the question of how spousal support can be dealt with pursuant to a prenuptial agreement in California.

California Prenuptial Agreements Can Limit or Entirely Waive Spousal Support

A prenuptial agreement is frequently used as a tool to set or limit the terms for spousal support – or alimony as it is often called – after a potential divorce. In California, the purpose of spousal support is to provide the lesser-earning spouse with additional income to allow them to enjoy a similar standard of living as during the marriage until the time they can become self-supporting. For marriages under ten years, spousal support is commonly awarded for half the length of the marriage, while marriages of over ten years generally include support awards of indefinite length to be sorted out by agreement of the parties or a court order. When there is great disparity between the incomes of the two spouses, the total amount of spousal support awarded can at times be more financially consequential than the award of property to the lesser-earning spouse.

Spouses-to-be are free to negotiate their own terms for spousal support in a prenuptial agreement, which can include no payment of spousal support at all between the parties. A common situation is that the parties to a prenuptial agreement will agree to a fixed amount of spousal support and a fixed duration of payment – e.g. one spouse will pay the other $5,000 a month in support for as many months as the parties were married, measured from the wedding to the date of separation – but, again, some parties choose to agree to no payment of spousal support whatsoever.

The Enforceability of Spousal Support Provisions in California (Both Parties Need Their Own Attorney, For Starters)

It is crucial to understand, however, that, pursuant to California Family Code section 1612(c), “Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement was signed…” Parties considering entering into a prenuptial agreement are highly advised to have their own attorney represent them, regardless of the contents, but the point here is that spousal support provisions will not be enforceable in any case if the party who is detrimentally affected by the provision did not have his or her own attorney during the creation of the agreement.

The Family Code goes on to state that spousal support provisions will also not be enforceable “if the provision regarding spousal support is unconscionable at the time of enforcement.” Unconscionability as a legal concept is the idea that a court will not enforce certain patently unfair contract provisions even if the parties otherwise voluntarily agreed to it. Note that the law indicates that unconscionability is measured not at the time the agreement was signed but at the time one party seeks to enforce the agreement, which could be decades later. Using an extreme example, if one spouse during marriage suffers a brain injury that prevents her from working while the husband becomes a billionaire, a court may find that enforcing a premarital agreement waiving spousal support may be unconscionable and thus will refuse to enforce it.

While attorneys and parties negotiating premarital agreements cannot predict with certainty what the parties’ situation will be years later, a common way to increase the likelihood of enforceability of a provision waiving or limiting spousal support is to provide other financial benefits to the dependent spouse, for example recurring payments during the marriage from the higher-earning spouse to the other spouse who can keep those payments as separate property, or a guaranteed interest in high-value assets in the event of a divorce. The prenuptial agreement is not to be relied upon as an insurance policy against payment of spousal support. It is the starting point for a negotiated resolution.

In any case, it is important to work with experienced counsel in negotiating a prenuptial agreement to protect and advocate for your interests while providing guidance on enforceability.

Guidance on Your California Family Law Questions From a Westlake Village Family Law Attorney

If you would like to learn more about how our office can provide guidance on any California family law issues you are facing in Ventura County or Los Angeles County, contact the Zonder Family Law Group office today at (805) 777-7740 or (818) 877-0001, or schedule your strategy session using easy-to-use online form here.

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