Recent ALIMONY Cases PRENUPS AND MILITARY ALLOWANCES MATTER, BUT MARRIAGE REGISTRATION AND POTENTIAL RETIREMENT MAY NOT Audra Ibarra
M PRENUPS MATTER
In re Marriage of Howell is a case of first impression. 126 Cal.Rptr.3d 539 (4th Dist., Div. 1 May 24, 2011). In that case, the Court of Appeal held that a prenuptial waiver of alimony or spousal support is enforceable, even if it was signed without independent counsel, as long as it was signed before 2002. The court further held that this is true despite the fact that a waiver signed without counsel after 2002 would not be enforceable. In 2002, the California legislature enacted subdivision (c) of section 1612 of the Family Code. That subdivi-
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ore people divorce in the United States than in most other countries.1
sion invalidated waivers made without counsel: Al-
though it is no longer true that half of all marriages in the United States end in divorce, divorce is still
common. In a recent year, approximately 40 percent of all marriages ended in divorce.2
First marriages that
ended in divorce lasted an average of eight years. Forty- six percent of all marriages involved a remarriage for one or both spouses. The median time between a di- vorce and a second marriage was three and a half years. With so many people marrying, divorcing, and remar- rying so frequently, it is understandable why divorce, and in particular the issue of alimony, is so conten- tious. Recently, the California Courts of Appeal de- cided four cases that concern the impact of prenuptial agreements, military allowances, marriage registration, and potential retirement on alimony.
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 provi- sion is sought was not represented by independent counsel at the time the agreement containing the provision was signed . . . . Cal. Fam. Code § 1612(c) (emphasis added).
In a dissolution of marriage proceeding, Pamela Howell sought spousal support. Prior to marrying Michael Howell in 1999, she had signed a prenuptial agreement without an attorney. In the agreement, they had mutu- ally waived spousal support in the event of a divorce. Michael argued that the waiver was a bar to support after divorce. But after a bifurcated trial, the Superior Court in San Diego County held that the waiver was unenforceable under subdivision (c) of section 1612 of the Family Code and ordered that Michael pay Pamela spousal support.
The Court of Appeal reversed in relevant part. It held that subdivision (c) of section 1612 of the Family Code does not apply retroactively to invalidate a waiver of spousal support signed before 2002. The court ex- plained that a new law is retroactive only if the legisla- ture intended it to be retroactive or if the law clarifies, as opposed to changes, existing law. Based on the face of the statute itself, as well as its legislative history, the court found that the “Legislature did not intend subdivi- sion (c) of section 1612 to apply retroactively.” Howell,
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