Can Spousal Support Be Waived in California?

Yes. California law lets spouses give up spousal support in writing, either in a premarital agreement signed before the wedding or in a settlement reached during a divorce. A waiver is not automatic, though. A premarital waiver has strict signing rules, and a court can refuse to enforce a waiver that fails them.

Most people facing this question are holding a document. It might be a draft prenup that a future spouse's lawyer sent over a few weeks before the wedding. It might be a settlement proposal in a Carlsbad divorce that says, in one short line, that neither side will ever pay support. Either way, the person reading it is trying to work out whether that line means what it says, whether it can be undone later, and what they would be giving up by signing.

This article walks through what a waiver is, the rules for premarital agreements and divorce settlements, when a court will not enforce one, and what support looks like when there is no waiver at all.

What Waiving Spousal Support Actually Means Under California Law

Spousal support, often called alimony, is money one spouse pays the other under a court order during or after a divorce or legal separation. A waiver is a written agreement in which one or both spouses give up the right to ask for, or to receive, that support. The broader rules on California spousal support explain how orders are made. A waiver is the agreement that takes the question off the table.

Two parts of the Family Code shape every waiver. The first is Family Code section 721, which treats spouses as fiduciaries in their dealings with each other. A fiduciary is someone who must act with honesty and loyalty toward another person. The statute puts it this way:

"This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other."

That duty includes giving the other spouse, on request, "true and full information of all things affecting any transaction that concerns the community property."

The second is Family Code section 3580, which lets spouses "agree, in writing, to an immediate separation" and "provide in the agreement for the support of either of them and of their children during the separation or upon the dissolution of their marriage." Providing for support in writing is where a waiver of support in a divorce settlement takes shape.

Timing decides which rules apply. A waiver signed before marriage sits inside a premarital agreement and is governed by the California Uniform Premarital Agreement Act, Family Code sections 1600 through 1617. A waiver signed during a divorce sits inside a marital settlement agreement, which is the written contract that resolves support, property and other issues so the court can enter a judgment. The Act's rules are written for premarital agreements, so they are not the yardstick for an agreement made during the marriage.

Waivers in Premarital Agreements: What the California Uniform Premarital Agreement Act Requires

Family Code section 1612 lists what a premarital agreement may cover, including property rights and "any other matter, including their personal rights and obligations, not in violation of public policy." Spousal support gets its own rule. Under section 1612(c), any provision about spousal support, "including, but not limited to, a waiver of it," is not enforceable in two situations:

• the person it is being enforced against "was not represented by independent counsel at the time the agreement containing the provision was signed," or
• the provision "is unconscionable at the time of enforcement."

Unconscionable means so one-sided that enforcing it would shock the conscience. The test is applied at the time someone tries to enforce the waiver, often years later at divorce, not only on the day it was signed. A life that looked one way at the wedding may look very different after a long marriage, a career break or an illness, and the statute lets the court look at that later reality. Section 1612(c) adds that having a lawyer does not rescue a provision that is otherwise unenforceable.

Section 1612(b) draws one more line: "The right of a child to support may not be adversely affected by a premarital agreement." A couple can address their own support. They cannot sign away their children's. The site's page on California child support covers how that support is set.

Family Code section 1615 governs whether the whole agreement was signed voluntarily. Under section 1615(c), an agreement is deemed involuntary unless the court finds, in writing or on the record, two things. First, the person was represented by independent counsel when signing, or, after being advised to get a lawyer, "expressly waived, in a separate writing, representation by independent legal counsel," with that advice given "at least seven calendar days before the final agreement is signed." Second, for agreements signed on or after January 1, 2020, the person "had not less than seven calendar days between the time that party was first presented with the final agreement and the time the agreement was signed, regardless of whether the party is represented by legal counsel." Agreements signed between 2002 and 2020 follow a similar seven-day rule tied to the advice to seek counsel.

Put together, a support waiver in a prenup generally depends on a separate lawyer for the person giving up support, a full week with the final draft, and terms that are not unconscionable when the time comes to enforce them. Section 1617 also pauses any statute of limitations on claims under the agreement during the marriage.

Waivers in Marital Settlement Agreements: How Spouses Can Waive Support During Divorce

During a divorce, the path usually runs through section 3580. Spouses put their support terms in writing, and that agreement becomes part of the judgment. A waiver can be one of those terms. It can also take other shapes: a fixed amount for a set period followed by no further support, or support that ends on a named event.

The more important question is often whether the agreement can be changed later. Family Code section 3591(a) sets the general rule: support provisions in an agreement "are subject to subsequent modification or termination by court order." So by default, a court keeps the power to revisit support if circumstances change.

Spouses can choose otherwise. Under section 3591(c), a spousal support agreement "may not be modified or revoked to the extent that a written agreement, or, if there is no written agreement, an oral agreement entered into in open court between the parties, specifically provides that the spousal support is not subject to modification or termination." Family Code section 3651(d) applies the same rule to support orders. The key word is "specifically." A general waiver line is weaker than one that plainly says the terms cannot be changed.

The difference matters after judgment:

• Modifiable support can be raised, lowered or ended by the court later, generally only as to amounts after a request to modify is filed (section 3591(b)).
• Nonmodifiable support, including a nonmodifiable waiver, generally stays as written, even if one spouse's health or income changes sharply.

The section 721 fiduciary duty runs through these negotiations too. Spouses are still married until judgment, so each owes the other the highest good faith and fair dealing while the settlement is being worked out.

When a California Court Will Not Enforce a Spousal Support Waiver

The judge decides whether a waiver holds. Signing a document does not take that decision away from the court when a statute says the waiver fails.

For premarital agreements, the grounds come straight from the statutes above. A spousal support provision fails under section 1612(c) if the person giving up support had no independent counsel at signing, or if the provision is unconscionable at enforcement. The whole agreement is treated as involuntary under section 1615(c) unless the court makes the findings on counsel and the seven-day window.

For settlements during divorce, the focus is honesty and disclosure. Family Code section 2104 requires each spouse to serve a preliminary declaration of disclosure, signed under penalty of perjury, covering their finances and including tax returns from the prior two years. Under section 2104(f), the petitioner serves it with the petition or within 60 days of filing the petition, and the respondent serves it with the response or within 60 days of filing the response. Those deadlines can be extended by written agreement or court order. Section 2104(a) states that perjury on this disclosure "may be grounds for setting aside the judgment, or any part or parts thereof."

A spouse who agreed to a waiver while the other side hid assets or income has a claim rooted in both section 2104 and the section 721 duty not to take "any unfair advantage." Whether that claim succeeds depends on the evidence, and the court weighs it.

How California Courts Calculate Support When There Is No Waiver

Knowing what support might look like without a waiver is part of understanding what a waiver gives up. Family Code section 4320 lists the circumstances a court "shall consider," including:

• each spouse's earning capacity compared with the marital standard of living, including marketable skills and time spent out of work for domestic duties;
• contributions one spouse made to the other's education, training, career or license;
• the paying spouse's ability to pay, based on earnings, assets and standard of living;
• and, under section 4320(l), "the goal that the supported party shall be self-supporting within a reasonable period of time."

For marriages that are not of long duration, that reasonable period "generally shall be one-half the length of the marriage." The statute is clear that this is a guide, not a cap. Nothing in it limits the court's discretion "to order support for a greater or lesser length of time."

Section 4330 gives the court room to order support in "an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage," taking into account the circumstances in the section 4320 factors above. For long marriages, section 4336 applies. There is a presumption that a marriage of 10 years or more, from marriage to separation, is of long duration, and in those cases the court keeps jurisdiction over support indefinitely unless the spouses agree in writing otherwise or the court ends support. A waiver in a long marriage is one way spouses close that open door.

Temporary support is a separate track. Under section 3600, the court may order support while the case is pending. Long-term support in the judgment is a different order, and a settlement waiver typically speaks to that longer-term support.

What This Means for Cases Filed in North County San Diego

Divorce cases from Carlsbad, whether the household is in La Costa, the Village or elsewhere in the city, are generally heard at the Superior Court of California, County of San Diego, North County Regional Center, 325 South Melrose Drive, Vista, CA 92081. Cases from Oceanside, Vista, San Marcos, Encinitas, Solana Beach, Del Mar and Rancho Santa Fe are part of the same North County picture.

The rules do not change at the county line. Sections 1612, 1615, 3580, 3591, 3651, 4320 and 4336 are state law and apply the same way in Vista as anywhere in California. A Carlsbad couple's prenup is tested against the same seven-day and independent-counsel rules as one signed in Sacramento. The section 2104 disclosure requirement applies in every San Diego County divorce, including those filed at the North County Regional Center. The site's overviews of divorce in Carlsbad and Carlsbad family law cover the wider process.

If You'd Like to Talk Through a Waiver Before Signing

A spousal support waiver often raises a few recurring questions: when the agreement was presented, whether each side had a separate lawyer, how long the marriage has lasted, and whether the language makes the terms nonmodifiable. A consultation is a place to raise those questions against the statutes above. Carlsbad Family Law Advocates practises California family law only.

To learn more about spousal support waivers under California law, call Carlsbad Family Law Advocates at (760) 840-5102 for a confidential consultation.