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Learn What to Do If You Have a Prenuptial Agreement and Your Spouse Seeks Temporary Spousal Support Anyway

Question: My Spouse and I executed a Prenuptial Agreement. It included a waiver of spousal support. They have brought a request for orders for temporary spousal support. Is that Allowed? What do I do?

Answer: Yes, they can seek temporary spousal support. You should file a request for orders and a motion to bifurcate the issue of the validity of the prenuptial agreement.

Family Code section 1615 “creates a presumption ‘that a premarital agreement was not executed voluntarily’ unless the trial court makes five designated findings found in Family Code Section 1615.

The trial court has both jurisdiction and discretion to award temporary spousal support, notwithstanding a waiver of spousal support in a premarital agreement, unless the court  makesthe five findings under section 1615(c) that are necessary to rebut the presumption that the premarital agreement was not executed voluntarily.

Therefore, filing a motion for bifurcation is not enough. When faced with a request for orders for temporary support, the party who opposes the order of temporary spousal support must file their own request for orders. In the case of Last v. the Superior Court, the Court addressed this issue of whether filing a motion for bifurcation of the on the validity of prenuptial agreement was sufficient to preclude an order of temporary support.

The court ruled it was not and noted that had Husband brought his own request for an order and asked the trial court to “conduct a facial review of the Premarital Agreement” to make findings under section 1615, the trial court could have made preliminary findings under section 1615 and denied the temporary spousal support request.  It was not enough that Husband requested the bifurcation of the validity of the premarital agreement. The court stated: “[i]t is …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 Court noted had the appellant done so, this “might have averted this appeal, and, potentially, the need to recoup support payments from” their spouse.

Galen Gentry assists clients in Los Angeles and Southern California with drafting prenuptial agreements and litigating issues relating to prenups. Mr. Gentry has 30 years of experience and can help people to protect their interests. Call at (310) 282-7521 or contact us online by using the Orange form on the right of your screen to schedule a free consultation.