Can Spousal Support Be Waived?

If you are headed for divorce, you will likely have questions about spousal support. Will the court require the higher earning spouse to pay the other monthly support? Spousal support is not "automatic" in California, but the court may decide to award it.

When you both meet with your respective divorce attorneys, one of you can ask the judge to award spousal support. Generally, it's the spouse who has been a homemaker, stay-at-home parent, or the spouse who earns significantly less than the other who asks for this support.

Let's say you would be the paying spouse and you don't want to pay spousal support. It's not necessarily up to you. If your spouse is asking for it, and you're not agreeing to it, the judge will decide after reviewing a variety of factors, such as:

  • The length of the marriage,
  • The age and health of both spouses,
  • Each of your assets and income,
  • The need for spousal support,
  • Your ability to pay it,
  • If your spouse helped you get an education, career, or professional license, and
  • If your spouse's career was affected by unemployment or taking care of the family.

Waiving Spousal Support

What if you and your spouse are employed and you both earn enough money that you can support yourselves? Can you enter an agreement where the spousal support is waived? Yes, it can be waived.

You and your spouse can agree to waive spousal support for the lower-earning spouse, but this agreement should be in writing – not verbal – and signed by the both of you.

If you earn more money and you file for divorce, it's not enough to say in the divorce petition that your spouse waives their right to spousal support.

Instead, your spouse would have to acknowledge this waiver in writing. If you are the lower-earning spouse and you intend to file for divorce, you can include the waiver in your petition, which would be entered into a judgement.

Words of Advice

If you are the lower-earning spouse and your husband or wife not only wants you to waive your rights to spousal support, but they're pushing for a DIY divorce, please be cautious. You can't be cautious enough, especially if there is a significant difference in earning power and assets.

Whether or not you're agreeable to waiving spousal support, this is something you should think about seriously, and not decide upon without a professional's input and advice.

Protect your rights in a divorce – contact Claery & Hammond, LLP today!