Prenuptial Agreements and the Amount of Support

Can a Prenup Dictate The Amount of Spousal Support?

When drafting a prenuptial agreement , the issue of spousal support (or alimony) is one of the most likely, and often most sensitive topics to come up.

Spousal support is a monetary amount designed to allow the lower-income spouse to continue meeting certain living expenses and/or continue maintaining a specific lifestyle. Once thought to be exclusively for the rich, spousal support is becoming more and more prevalent across the country.

How Much is Enough?

In general, there is no set amount required by law. In fact, your prenuptial agreement doesn’t have to include alimony at all. It should however, address the issue one way or the other, meaning that if you’re not going to pay spousal support, your prenup should state this fact and include a signed waiver from your spouse.

It should be noted that some states don’t recognize this kind of waiver at all and those that do will scrutinize it closely.

Courts want to be sure that both parties can continue to meet their reasonable living expenses and if one spouse receives a considerably larger income than the other, the court may set aside the waiver and grant alimony anyway.

The key to alimony is a two-part test: the first is the self-sufficiency question. Can both parties continue to be self-sufficient without any support from the other? If the answer is yes, the court may very well allow a waiver to stand. If the answer is no however, alimony may be awarded to balance out the difference.

The second part of the test is a standard known as “unconscionability”. This basically means an agreement that is obviously unfair or detrimental to one of the parties. In this test, the courts look to see if the agreement is one that a sensible or prudent person would normally sign without any stress, coercion or misrepresentation of facts. If not, the agreement will be set aside and the courts will award spousal support in a more appropriate amount.

Drafting Your Agreement

Prenuptial agreements can specifically address a number of variables such as a drastic increase or decrease in income and/or expenses, so it makes sense to be as detailed as possible when drafting your prenup. You can include provisions that ensure the amount of spousal support never exceeds a certain percentage of your income for example or the recipient spouse could ask that a future increase in income be addressed separately in the agreement.

You can also outline different amounts based on different factors such as the number of years the marriage lasts or a significant financial change that may or may not occur in the future. This is often called an escalator clause and is commonly used to allow the prenuptial agreement to adjust with unforeseen changes and events.

Alimony can continue for an unlimited amount of time or a fixed period. It can vary in amounts or stay the same for the duration it is paid. You can also make alimony subject to certain conditions, such as the recipient spouse remarrying or achieving a certain income on their own. In any event, alimony ends when the recipient spouse dies.