Limiting Alimony With a Prenup
To many, spousal support (alimony) is a bitter word.
But, here’s good news! You may be able to limit (or waive) alimony through a prenuptial agreement.
Parties may waive spousal support prior to marriage via a prenuptial agreement.
However, specific requirements must be met in order for an individual to waive their right to alimony.
- Both parties must have independent legal counsel of their choice.
- The alimony terms must be conscionable at the time of signing.
Should I Waive Alimony?
That depends on your situation and your relationship expectations entering the marriage.
Do both of you work? How is your salary – comparable or vast disparity? Are there expectations that one of you stay home? Do you plan to have children? If you have children, is child support enough without alimony?
What about disability? What if one of you is hit by a bus and can no longer work?
There are many considerations that go into the decision to waive alimony. (Also, spousal support is different than child support. One can never waive child support.)
It may be a good idea to hire a mediator to help you mediate these issues.
Instead of Waiving Alimony, LIMIT It
Perhaps you choose not to completely waive alimony.
An alternative is to LIMIT it, i.e., put a cap on either 1) amount or 2) duration.
For example, you may decide, “I want to pay no more than $10,000 per month for no more than 1/3 the length of the marriage.”
Or perhaps, “I’ll pay alimony once we have been married for 10 years, but limit it to $5,000 per month, for no more than 1/2 the length of the marriage.”
If you do decide to limit alimony, make sure you aren’t paying more than what the law would make you pay (guideline). You don’t want to have to pay MORE.
For example, don’t agree to pay $10,000 unless you are certain your high paying job that allows you to pay that amount isn’t going away.
Marriage of Facter
Don’t want to freak you out, but Facter v Facter In re Facter 212 CalApp4th 967 152 CalRptr3d 79 Cal App 2013 is a case that says your spousal support waiver/limitation may NOT be enforceable if AT THE TIME the prenup is enforced (meaning, when you divorce and take out the prenup), it would be UNJUST.
In the Facter case, husband was a baby Harvard Law grad who drafted his own prenup against wife. (4 page prenup that waived community property and spousal support).
Marriage lasted 16 years. At the time of the divorce, Husband was a high-falutin attorney earning up to 700k a year. She was a stay at home mom high school graduate.
The Court threw out the prenup.
“Given that Jeffrey’s self-reported separate property is now in excess of $10 million and his earnings $1 million per year, whereas Nancy amassed no separate property during the marriage and has no income at all, we have little difficulty in concluding that the Agreement’s spousal support waiver is presently unconscionable.”
It’s important you read this case. And always, always have a severability clause.
@lawyerkelly limit alimony w prenup #prenuptialagreement #divorceattorney #familylaw #divorcedparents #divorcecourt #alimony #SearchForWonderMom ♬ Numb Little Bug – Em Beihold