An Overlooked Burden of the Premarital Agreement

• Publication year: 2018
• Author: Justin O'Connell

An Overlooked Burden of the Premarital Agreement

Justin O'Connell

Justin M. O'Connell is a partner at Cavassa O'Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O'Connell is a Certified Family Law Specialist, served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015, and is currently a member of the California Lawyers Association Family Law Executive Committee. He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey County Superior Court since 2013.

A new dissolution client presents you with his or her premarital agreement and asks if it is valid. You think to yourself, "It depends on if you are the proponent or opponent of the agreement." The immediate reaction is to analyze the agreement to see if it is enforceable, whether an attorney represents the proponent of the agreement (the "Proponent"), or opponent of the contract (the "Opponent"). This peculiar scenario in contract law is one in which both parties are invariably concerned about enforcement, which is due in large part on the objective formalities of formation. However, there is often a subjective component in that an attorney, a client, or a judge harbor individual notions of fairness and justice that do not neatly fit into the four corners of the agreement. After all, what is fair? What is unconscionable? What is a full disclosure of assets? These questions are open with respect to every premarital agreement, which invariably leads to exploration of the possibility of a set-aside.

This subjective component is somewhat contrary to public policy. Such policy supports valid premarital agreements, rather than presuming them to be suspect. To the extent a premarital agreement does not violate public policy, and is freely entered into, premarital agreements are favored by the courts.¹ Some courts have noted that premarital agreements are most often viewed as encouraging, rather than discouraging, marriage, which is a value to promote.²

Assuming the Opponent decides to challenge enforcement of the premarital agreement, it could take months (or years) to reach a final adjudication as to its validity. Where a provision of the agreement waives spousal support rights, the Opponent may desire spousal support pending a trial on the validity of such waiver, or of the agreement as a whole (i.e., where a complete set-aside is sought). It would seem the simple path for the Opponent to take is to file a request for orders seeking temporary spousal support. However, what is explored below is the different burden of proof for such a request, and the type of evidence needed to support it. After all, unlike a standard request for temporary spousal support, if the Opponent loses at trial, he or she would have been receiving temporary support they were not entitled to under the premarital agreement.

In both Gromeeko v. Gromeeko³ and In re Marriage of Stich,⁴ the husbands challenged the subject matter jurisdiction of the California trial court in a marital dissolution action based upon prior decrees of divorce issued by other jurisdictions. The wives challenged the validity of the prior decrees. Both cases found that the trial court had jurisdiction to award...