Spousal Support in Premarital Agreements

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Spousal support is one of the hardest conversations to have when negotiating a premarital agreement. It’s personal, financial, and touches every fear people have about what could go wrong in the future. But it’s also where a prenup can provide the most clarity and protection for both partners if you do it right.

Here’s how I help clients think through the spousal support provisions in a California prenup, and what kinds of choices are actually enforceable. 

Without a prenup, California gives courts broad discretion to award spousal support based on a long list of factors (see Family Code §4320). That means there is no certainty about outcome, just a lot of room for legal fees and emotional conflict if you break up.

With a prenup, you can replace that uncertainty with a clear agreement that reflects your values, your career paths, and your definition of fairness. That might mean waiving support entirely, building in specific safety nets, or capping obligations with formulas and dollar limits. The right structure is the one that matches your goals and avoids surprises later.

What You Can’t Do

California will not enforce infidelity clauses or lifestyle penalties. You cannot tie spousal support to whether someone cheated. These clauses violate no-fault divorce rules and could put your entire agreement at risk. Skip them.

Three Ways to Structure Spousal Support

 1. Complete Waiver

No spousal support now or later. Each person walks away with only what they are entitled to under the property terms.

Caveats:

These provisions face the most scrutiny in court. Your agreement must be drafted cleanly with independent counsel and full financial disclosure.  

 

2. Conditional Support

This creates safety nets only in specific situations.

·      Minimum marriage length: No support unless the marriage lasted a certain number of years.

·      Family care exception: If one person stops working for several years to raise kids, support becomes available.

·      Disability clause: Support is allowed if a spouse becomes significantly disabled.

·      Income disparity test: Support kicks in if one party earns more than 2 or 3 times the other’s income.

·      Net worth clause: No support if the requesting spouse has more than a certain amount in separate property at the time of divorce.

This is a flexible, modular structure. It works well for couples who generally want independence but understand that life happens.

 

3. Limited Support with Specific Caps

 This structure acknowledges that support might be appropriate but limits the risk.

Common tools:

  • Time limits: For example, support may be capped at 2 years or half the length of the marriage.

  • Dollar caps: For example, support may never exceed $5,000 per month.

  • Formulas: California’s common formula is 40% of the higher earner’s net income minus 50% of the lower earner’s net income, multiplied by 0.85.

  • Formula plus cap: This is the most common structure I use. It calculates support using the formula but limits the monthly amount to a defined maximum, like $8,000.

  • Real-world metric: Instead of a flat cap, some clients tie the limit to something like the average rent for a one-bedroom in the separation location. It adjusts with cost of living automatically.

Key Extras to Think About

Immigration sponsorship: If one spouse sponsors the other for a green card, federal law may override the prenup. You can’t waive the federal support requirement. Your agreement should have a clause acknowledging that federal obligation and limiting state support to that amount. 

Inflation: If you use a fixed cap or dollar amount, you’ll want to tie it to the Consumer Price Index or another inflation adjustment.

When support ends: Support usually terminates at remarriage, death, or cohabitation. Your agreement can define cohabitation more precisely if needed.

 

California applies special scrutiny to spousal support waivers. Even if the agreement is properly executed, a judge can later throw it out if enforcement would be “unconscionable” at the time of divorce. Here’s what protects you:

·      Independent counsel for both parties.

·      Full financial disclosure.

·      Time to review the agreement before signing.

·      Strong challenge deterrent clauses, such as requiring one party to pay the other’s legal fees up front if they contest the terms.