Prenuptial Agreement and Violating Public Policy

At the Orange County Law Office of David P Schwarz we have litigated many prenuptial cases where a violation of public policy voided the agreement. Please contact our office for a consultation at 949 735 9266. We can also be reached via the web and via email at

A Divorce lawyer will explain to you that In General. Under Family C. 1612(a)(7) , the parties in a premarital agreement may contract as to any matter “not in violation of public policy or a statute imposing a criminal penalty.”

A Divorce attorney will also explain to you about the legal consequences of an Invalid Waiver of Right to Support During Marriage. A premarital agreement relating to the disposition of property rights that does not seek to alter legal support obligations is valid; but one that also relieves a spouse from the obligation of supporting the other spouse during the marriage is invalid to that extent.

Agreement for Compensation on Divorce. A contract that provides for a substantial payment to a spouse in the event of dissolution of the marriage is regarded as encouraging divorce and is consequently illegal. [modern status on validity of premarital agreements governing support or property rights on divorce or separation as affected by fairness or adequacy of terms].)

A Divorce lawyer will explain to you as well that an Agreement Imposing Penalty for Fault During Marriage. A contract that penalizes a spouse for misconduct during the marriage violates the public policy favoring no fault divorce embodied in and is therefore unenforceable. Postmarital contract requiring spouse who is guilty of sexual infidelity to pay liquidated damages to other spouse on dissolution of marriage postmarital contract requiring husband to forfeit his interest in certain community property should he use illicit drugs; following Diosdado].)

At the Orange County Law Office of David P Schwarz we will educate our clients on the Distinction of when there is Compensation Making Marriage Economically Feasible. An example would be where a premarital agreement required the husband to pay the wife $100,000 on their divorce. The agreement further stipulates that their separate property would remain separate property and that the earnings and accumulations during the marriage would be held as separate property. The husband is a multimillionaire. When the agreement is signed, the wife is dependent on spousal support from an earlier marriage, and that support terminated on remarriage.

The Court would not enforce the agreement, relying on the Noghrey and Dajani decisions.

Public policy renders a premarital agreement void insofar as its terms encourage or promote the dissolution of the marriage. Terms that encourage or promote dissolution offend the public policy to foster and protect marriage. On the other hand, neither reordering property rights to fit the needs and desires of the couple, nor realistic planning that takes account of the possibility of dissolution, offends this policy. “It is only when the terms of an agreement go further—when they promote and encourage dissolution, and thereby threaten to induce the destruction of a marriage that might otherwise endure—that such terms offend public policy.”

If the property involved in the case the husband's house and the greater of $500,000 or one-half of his assets—was so substantial that the premarital agreement “threatened to induce the destruction of a marriage that might otherwise endure” under the Dawley test.

Other Courts view the payment to other spouse not in violation of public policy such as, Dajani where a A dowry worth only $1,700 was payable upon dissolution, was insufficient to seriously jeopardize a viable marriage.

Unlike Noghrey, the $100,000 payment provision here did not threaten the marriage relationship. It was the product of realistic planning, accounting for the possibility of dissolution. The wife's need for the $100,000 payment provision arose from her dependence on spousal support from her former spouse, which would terminate on remarriage. The trial court expressly found that the provision was intended to compensate wife for the loss of this support. The purpose of the $100,000 payment provision was to ensure that, if the husband died or the marriage was dissolved, the wife would be no worse off than she would have been had she remained single. Such a provision cannot reasonably be construed as “threatening to induce the destruction of a marriage that might otherwise endure.” Rather, the provision made it economically feasible for the wife to enter into the marriage. It had the effect of encouraging rather than discouraging marriage.

Distinction: Waiver of Spousal Support on Dissolution. The waiver of spousal support on dissolution in a premarital agreement is not per se unenforceable. A waiver, when made voluntarily by parties who are aware of its effect, does not offend contemporary public policy and is therefore permitted under Family C. 1612.

Other views and cases have wife's spousal support waiver contained in prenuptial agreement executed in 1985 violated public policy as it then existed and, thus, was unenforceable; even though more recent public policy permits spousal support waivers if statutory requirements are satisfied, trial judge properly applied law that existed in 1985; distinguishing Pendleton]; In re Marriage of Facter (2013) [unlike Pendleton, waiver of spousal support by wife in premarital agreement was unconscionable, given disparity between parties' income, assets, and education; however, waiver of wife's community property rights in premarital agreement was valid, where husband fairly and reasonably disclosed his premarital assets].)

Family C. 1612(c) significantly limits waivers of spousal support in premarital agreements.

At the Orange County Law Office of David P Schwarz we are committed to defending and constructing prenuptial agreements that can withstand the Family Courts scrutiny. Please contact our office for a consultation at 949 735 9266. We can also be reached via the we or via email at

Client Reviews
David is an excellent attorney!!!!!!! He gives 100% to his clients. I highly recommend him for your legal needs, in his expertise. He has been most patient, gracious, thorough, and always gets right back to you. Thank you so much for your excellent service!!!!! L.H.
David knocked it out of the park today. He was clear, passionate, articulate, and a good mix of calmness with pissed off. Best I've ever seen him. David - Love ya man. Thanks. C.P.
I have referred several of my friends and relatives who needed representation in family court to David. From prenuptial agreements to divorce to child custody, David is the go-to guy. He is a seasoned attorney who knows what he's doing, and so far, I've only heard good things about him. C.G.