Metropolitan News-Enterprise


Friday, August 4, 2023


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Court of Appeal:

Prenuptial Agreement Is Conditionally Presumed Invalid


By a MetNews Staff Writer


Prenuptial agreements are not presumed to be valid, Div. Three of the Fourth District Court of Appeal has held, declaring that, to the contrary, they are presumed to be invalid unless the court makes certain statutorily specified findings.

The holding comes in an opinion filed Wednesday. Justice Maurice Sanchez was the author.

Sanchez’s opinion rebuffs a challenge by construction company executive Peter J. Last an award of temporary spousal support to his wife, Debra Michelle Last. The husband relies on a prenuptial agreement, executed by the parties prior to their 2002 marriage, in which each waived spousal support.

The opinion centers on provisions of Family Code §1615. It does not say whether the Lasts’ agreement meets the requisites for enforceability—leaving that issue for a future determination—but declares that no findings yet made precluded the award by Orange Superior Court Judge Sheila Recio.

It leaves open the prospect that, in the end, the wife will be ordered to return support payments if the agreement is found valid.

Family Code Provision

Subd. (a) of §1615 says that such a premarital agreement “is not enforceable if the party against whom enforcement is sought proves” that he or she did not execute it voluntarily.

Subd. (c) provides that “it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record” that “(1) The party against whom enforcement is sought” had independent counsel or expressly waived it after a period of at least seven days to decide and “(2) One of the following” other factors was present.

Those factors relate to a party having had time to think it over; not having been unduly pressured or taken advantage of; having been fully informed of the consequences, if unrepresented; and there being no other relevant facts reflecting involuntariness.

Sanchez’s Opinion

Sanchez wrote:

“Peter argues the trial court erred by awarding Debra temporary spousal support because the premarital agreement is presumed to be valid and, absent a determination the agreement is unenforceable, it barred an award of temporary spousal support.

“While we agree with Peter that premarital agreements are no longer disfavored and are not per se unenforceable, Peter is incorrect in asserting the premarital agreement is presumed valid simply because it facially appears to satisfy the requirements of section 1615(c)(1) and (2). To the contrary, a premarital agreement is presumed to have not been executed voluntarily, and is therefore unenforceable, unless the trial court finds in writing or on the record that the agreement satisfies the requirements of section 1615(c)(1) and (2).”

The jurist continued:

“Although the premarital agreement in this case might appear to satisfy the requirements of section 1615(c)(1) and (2), the trial court made no findings on the subject, and it is the court’s findings that rebut the presumption of involuntary execution. Peter did not ask the trial court to conduct a facial review of the agreement and make such findings. Thus, when the court ordered temporary spousal support, the premarital agreement was deemed not to have been voluntarily executed, and, therefore, the spousal support waiver did not prevent the court from awarding Debra temporary spousal support.”

The husband contended that the California Supreme Court’s 2000 decision in In re Marriage of Pendleton & Fireman trounces his spouse’s position. Sanchez disagreed, saying that the high court’s decision validates prenuptial waivers of spousal support, in general, but does not deal with the procedure for determining the enforceability of a particular agreement.

Court Poses Question

Oral argument was held on April 17, but the panel deferred taking the case under submission. The following day, the parties were invited to submit supplemental briefs addressing this question:

“If it is determined the family court lacked jurisdiction to award temporary spousal support in this case or the order awarding temporary spousal support is otherwise deemed to be erroneous, would the family court have the jurisdiction and authority to reallocate the amount paid in temporary spousal support by, for example, adjustments to the division of assets?”

The parties filed the additional briefs and the case was taken under submission on May 19. In Wednesday’s decision, Sanchez noted that some cases have recognized a power to retroactively modify temporary spousal support where the court has reserved jurisdiction.

He quoted Recio as saying at a hearing on Sept. 27, 2021: “[T]o be clear, the order regarding spousal support...may be reallocated at the conclusion, obviously, of course, for example if the premarital agreement is found to be valid.”

She specified that if it is determined that spousal support was not awardable, Peter Land “will be given credits at the conclusion of the case.”

Sanchez said:

“Peter contends this is not an express reservation of jurisdiction. We conclude it is.”

Temporary Spousal Support

He noted that while an award of temporary spousal support is ordinarily immediately appealable as a collateral order, a question emerges as to whether the collateral order is appealable in the present instance based on a lack of finality, given the power to alter it. The justice said that while “we conclude the interests advanced by the collateral order doctrine are best served by deeming the order awarding temporary spousal support to be appealable,” out of an abundance of caution, the appeal would be treated as a writ petition, and denied.  Providing guidance for parties in future cases, Sanchez wrote:

“In his supplemental brief, Peter suggests a procedure for ruling on a request for temporary spousal support in the face of a support waiver in a premarital agreement. He proposes that the trial court first conduct a facial review of the premarital agreement to determine whether the agreement on its face complies with section 1615(c).

“We agree that would be a sensible approach and, in this case, might have averted this appeal and, potentially, the need to recoup support payments made to Debra. We stress, however, that a premarital agreement is presumed not to have been executed voluntarily. It is therefore incumbent upon the party seeking to enforce a premarital agreement to initiate this first step by bringing a request for order for the trial court to undertake such a facial review and make findings under section 1615(c).”

The case is Last v. Superior Court (Last), 2023 S.O.S. 2838.


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