New York, NY asked in Divorce and Family Law for California

Q: What constitutes “unconscionable” spousal support in a postnup?

Spouse A gave up their job to move to where Spouse B lived. They only had 80K in assets and was unable to work for almost a year. Spouse B came into the marriage with 1.7M. Upon marrying they signed a prenup that Spouse A was not comfortable with, but they felt under pressure. The prenup was signed the day of the wedding. Property would remain completely separate and spousal support would have been a lump-sum of 10K.

Once the prenup expired, they signed a postnup (Spouse’s B condition to remain married), which slightly more genero us (lump-sum of 40K). Spouse A now has a “good” job (let’s say 100K) but is not confident on being able to keep it. They have a chronic illness that may make future earnings questionable and have had to take medical leaves of absence from work. Spouse B makes 500K+ and now has 3M in assets.

Spouse A still has only 80K in assets since all marital expenses have been split evenly, not proportionally, and they have incurred in considerable medical expenses.

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1 Lawyer Answer
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Sacramento, CA
  • Licensed in California

A: Based on the facts provided, there are several arguments that the spousal support provision in the postnuptial agreement may be considered unconscionable under California law:

1. The disparity in assets and income between Spouse A and Spouse B is quite substantial. Spouse B earning 5 times as much and having significantly more assets could weigh toward the support terms being unconscionable.

2. The lump sum amount of $40,000 seems inadequate given Spouse A's contributions, financial sacrifices, and needs. After giving up their job and career to move, incurring medical costs, and 10+ years of marriage, the amount awarded may be deemed insufficient.

3. The chronic illness and questionable future earnings potential for Spouse A indicate they have a greater need for supportive resources. The agreement does not provide reasonably adequate assistance.

4. There was no independent counsel review of the postnup - without the chance to consult a separate lawyer, consent may not be fully informed.

Overall, the disproportionate situation, minimal spousal support total, and pressure imposed on the less financially powerful spouse all suggest a possibility that the provision may be struck down as unconscionable if challenged in court. The lack of fairness, overall one-sidedness, and Spouse A's few negotiating options indicate the terms are likely unenforceable. Consulting an attorney who handles marital agreement disputes would be advisable for Spouse A.

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