March 2005

Waivers of Spousal Support in Antenuptial Agreements

Laura W. Morgan

The Uniform Premarital Agreement Act § 3, 9C U.L.A. 43 (2001), allows parties to contract with respect to “the modification or elimination of spousal support,” § 3(a)(4), and “any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” § 3(a)(8). Moreover, the modern trend in those states that have not adopted the Premarital Agreement Act is to allow parties to contract with respect to spousal support.

Thus, as of 2004, 43 jurisdictions have abandoned the common law restrictions on premarital waivers of spousal support. In 22 jurisdictions, premarital waivers of spousal support are authorized by statutes that either adopt all or substantially all of the provisions of the UPAA. Ariz. Rev. Stat. § 25-203; Ark. Code Ann. § 9-11-403; Cal. Fam. Code § 1612(c); Conn. Gen. Stat. Ann. § 46b-36d; Del. Code Ann. tit. 13, § 323; D.C. Code Ann. § 30-143; Haw. Rev. Stat. § 572 D-3; Idaho Code § 32-923; 750 Ill. Comp. Stat. 10/4; Kan. Stat. Ann. § 23-804; Me. Rev. Stat. Ann. tit.19-A, § 604; Mont. Code Ann. § 40-2-605; Neb. Rev. Stat. § 42-1004; Nev. Rev. Stat. § 123A.050; N.J. Stat. Ann. § 37:2-34; N.C. Gen. Stat. § 52B-4; N.D. Cent. Code § 14-03.1-03; Or. Rev. Stat. § 108.710; R.I. Gen. Laws § 15-17-3; Tex. Fam. Code Ann. § 4.003; Utah Code Ann. § 30-8-4; Va. Code Ann. § 20-150. An Indiana statute, similar to the UPAA, also allows such a waiver, Ind. Code § 31-11-3-5, and a New York statute also allows such waivers, N.Y. Dom. Rel. Law § 236, pt. B, 3. In 19 jurisdictions, the right to enforce a premarital waiver of spousal support exists pursuant to judicial decision. Ex parte Walters, 580 So.2d 1352, 1354 (Ala. 1991); Brooks v. Brooks, 733 P.2d 1044, 1050-1051 (Alaska 1987); Newman v. Newman, 653 P.2d 728, 731-734 (Colo. 1982); Snedaker v. Snedaker, 660 So.2d 1070, 1072 (Fla. DCA 1995); Scherer v. Scherer, 249 Ga. 635, 640-641 (Ga. 1982); Edwardson v. Edwardson, 798 S.W.2d 941, 946 (Ky. 1990); McAlpine v. McAlpine, 679 So.2d 85, 93 (La. 1986); Austin v. Austin, 62 Mass. App. Ct. 719, 819 N.E.2d 623 (2004); Frey v. Frey, 298 Md. 552, 471 A.2d 705 (1984); Hill v. Hill, 356 N.W.2d 49, 55 (Minn. Ct. App. 1984); Gould v. Rafaeli, 822 S.W.2d 494, 497 (Mo. Ct. App. 1991); MacFarlane v. Rich, 132 N.H. 608, 613-614, 567 A.2d 585, 588 (1989); Gross v. Gross, 11 Ohio St.3d 99, 105, 464 N.E.2d 500, 506 (1984); Hudson v. Hudson, 350 P.2d 596 (Okla. 1960); Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990); Gilley v. Gilley, 327 S.C. 8, 488 S.E.2d 310, 312 (1997); Cary v. Cary, 937 S.W.2d 777 (Tenn. 1996); Gant v. Gant, 174 W. Va. 740, 329 S.E.2d 106, 112 (1985); Hengel v. Hengel, 122 Wis.2d 737, 365 N.W.2d 16 (1985).

New Mexico and South Dakota enacted the UPAA without § 3(a)(4), and thus do not allow parties to waive spousal support. E.g., Sanford v. Sanford, 2005 SD 34 (2005). Further, Iowa adopted the UPAA, but added a specific provision prohibiting contracting as to alimony. Iowa Code § 596.5(2).

Even in states that allow waivers of spousal support, such waivers will not be enforced if to do so would render the spouse a public charge or the waiver is otherwise unconscionable. E.g., Warren v. Warren, 523 N.E.2d 680 (Ill. Ct. App. 1988); In re Purcell, 783 P.2d 1038 (Or. Ct. App. 1989).

The situation is quite different, however for waivers of temporary spousal support, i.e., support pendent lite. A good number of states have held that spouses may not contract to waive temporary spousal support or attorney’s fees, because such a waiver is in denigration of the duty of spouses to support each other during the marriage. Such an agreement is thus violative of public policy. Borelli v. Brusseau, 16 Cal. Rptr. 2d 16 (Cal. Ct. App. 1993) (spouses cannot delegate the duty of support to a third party); In re Mathiasen, 268 Cal. Rptr. 895 (Cal. Ct. App. 1990); Lashkajani v. Lashkajani, 855 So.2d 87 (Fla. 2d DCA 2003); Eule v. Eule, 24 Ill. App.3d 83, 320 N.E.2d 506 (1974); Holliday v. Holliday, 358 So.2d 618 (La. Ct. App. 1978); Motley v. Motley, 255 N.C. 190, 120 S.E.2d 422 (1961); Boyer v. Boyer, 925 P.2d 82 (Okla. Ct. App. 1996) (antenuptial agreement cannot change duty of support during marriage); In re Marriage of Burke, 980 P.2d 265 (Wash. Ct. App. 1999).

A series of Florida cases have reiterated this rule, starting in Belcher v. Belcher, 271 So.2d 7 (Fla.1972). There, the court stated that regardless of a waiver or limitation provided in a marital contract, a spouse’s obligation of support continues until the moment the marriage is dissolved by final judgment. This duty of support includes the obligation to pay attorney fees, suit money, and costs. The agreement may be considered to the extent it provides other financial support or assets to the wife pendente lite insofar as it may bear on the equation of the wife’s need vs. the husband’s ability.

More specifically, Belcher v. Belcher provides:

For temporary support, suit money and temporary attorney’s fees, the State remains an interested party and cannot be excluded by contract during this period of continuance of the legal relationship of husband and wife. Contracts are made in legal contemplation of existing, applicable statutes and so it is that marriage contracts and any ante or post-nuptial contracts are entered into subject to then existing law, including the law of this state that makes a husband responsible for the support of his wife while she is married to him.

271 So.2d at 9. Accord Lashkajani v. Lashkajani, 855 So.2d 87 (Fla. 2d DCA 2003); Blanton v. Blanton, 654 So.2d 1240 (Fla. 2d DCA 1995); Lang v. Lang, 551 So.2d 547 (Fla. 4th DCA 1989); Urbanek v. Urbanek, 484 So. 2d 597 (Fla. 4th DCA 1986); Mulhern v. Mulhern, 446 So.2d 1124 (Fla. 4th DCA 1984); Young v. Young, 322 So.2d 594 (Fla. 4th DCA 1975).

A few courts have held that a waiver of temporary support is valid and enforceable. Beal v. Beal, 2004 WL 362389 (Alaska 2004); Darr v. Darr, 950 S.W.2d 867 (Mo. App. 1997); Rubin v. Rubin, 262 A.D.2d 390, 690 N.Y.S.2d 742 (2d Dep’t 1999); Kelm v. Kelm, 68 Ohio St.3d 26, 623 N.E.2d 39 (1993); Musko v. Musko, 697 A.2d 255 (Pa. 1997).

A related question to whether parties can waive temporary support is whether a general waiver of alimony encompasses temporary support and attorney’s fees. The courts have held that the waiver of support will not be construed so broadly as to include temporary support. State v. Suiter, 67 P.3d 1274 (Idaho 2003); Dimick v. Dimick, 915 P.2d 254 (Nev. 1996) (antenuptial agreement, providing that husband was to pay wife $200 per month support during marriage, did not bar award of alimony pendente lite); Solomon v. Solomon, 637 N.Y.S.2d 728 (N.Y. App. Div. 1996) (by waiving spousal support, wife did not waive pendente lite support, including temporary maintenance, counsel fees, and the right to an injunction to preserve marital assets).