CAN YOU GET ALIMONY IF YOU SIGN A PRENUPTIAL AGREEMENT?
Our prenuptial attorneys have prepared prenups for clients that have included a wide variety of alimony terms, because every couple’s situation is unique. Some variations of spousal support terms that we have incorporated in recent premarital agreements for our clients have included:
Yes, you can actually use a prenuptial agreement to guarantee either spouse a minimum amount of alimony, so that each party knows their “worst case” alimony scenario in the event of a divorce. You and your fiancé can agree to no alimony at all, some fixed or sliding amount of alimony, or payments for a defined period of time or until a triggering event—the choice is yours.
Some couples don’t bother to consider the many benefits of entering into a premarital agreement because they have heard the myth that the only purpose of a prenup is to avoid alimony. They fear the possibility of being left with no financial support if their spouse asked for a divorce, especially if they decided to forego future career advancement and earnings to raise children or to provide some other benefit for the family. Although more people than ever are asking for prenups, a lot of people still think that signing a prenup before marriage automatically means they will give up the right to alimony.
We hear clients voice that concern quite frequently, and they are pleasantly surprised to learn that it doesn’t have to be that way.
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Alimony payments of $1,000 per month to one spouse for 3 years, but only if they separate after 5 years of marriage;
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Either party may seek up to $40,000 in alimony, if needed for training or education to re-enter the workforce after the divorce;
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A lump sum payment of $10,000 to one spouse if that spouse happens to be unemployed when they divorce;
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Either spouse can apply for up to $30,000 in alimony if they have been married ten years; and very often
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No alimony or spousal support will be owed to either spouse in the event of divorce.
For the most part (subject to certain limitations and state law variances), a marrying couple can freely agree to whatever alimony terms make them comfortable to enter the marriage with confidence and peace of mind, given their personal situation.
It is also important to understand that the alimony terms in a prenup can be amended (in writing) to provide for a different alimony arrangement at any time after marriage to reflect changed life circumstances, such as a situation where one spouse quits or reduces work for the collective good of the family unit.
States Almost Always Enforce Alimony Terms in Premarital Agreements
In contrast, New York is one of the 24 states that has not adopted the Uniform Premarital Agreement Act. Although N.Y. Gen. Oblig. Law § 3-303 allows contracts made in contemplation of marriage (called “antenuptial agreements” in New York), New York statutes do not expressly state that spousal support/alimony can be addressed in a premarital agreement (like other state laws). Nevertheless, New York premarital agreements can certainly address alimony, and parties frequently agree to eliminate or restrict spousal support in the event of a divorce. However, if a spouse deprived of alimony under a prenup is forced to seek public assistance, a New York court is likely to overturn the alimony provisions of the prenuptial agreement.
Iowa, Vermont and Wyoming have similar enforcement policies when it comes to prenups where spouses have waived or restricted the right to seek spousal support. Couples who agree on pre-defined alimony payment terms in their premarital agreement enjoy a peace of mind that enables them to embark on the wonderful roller-coaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.
All states allow a couple to opt-out of the state’s default divorce laws and agree in advance if and under what conditions either of them can seek alimony / spousal support in the event of a divorce, subject to certain limitations, requirements and restrictions in some states.
Florida law specifically states that parties to a premarital agreement may agree on the “establishment, modification, waiver or elimination of spousal support.” Fla. Stat. § 61.079(4)(a)(4). Like Florida, Virginia and New Jersey have enacted versions of the Uniform Premarital Agreement Act and have statutes on the books that expressly state that a premarital (or pre-civil union) agreement can modify, restrict or eliminate alimony. See Va. Code Ann.§ 20-150(4) and N.J. Stat. Ann. § 37:2-34(d). Likewise, Nevada's Uniform Premarital Agreement Act clearly states that parties to a premarital agreement may contract with respect to the "modification or elimination of alimony or support or maintenance of a spouse". NRS 123A.050.
ALIMONY TERMS FOR IMMIGRANT SPOUSES
Many of our clients are engaged to marry an immigrant and are planning to serve as sponsor to petition for their fiancé to enter the United States. The Dept. of Homeland Security requires people sponsoring their immigrant fiancé to come to the U.S. on a Visa to provide an Affidavit of Support (https://www.uscis.gov/i-864), and it is critical to take into account the Affidavit of Support obligation for someone about to sign a prenup.
The Affidavit of Support creates a 10-year contract between the U.S. Government and the sponsor, requiring the sponsor to financially support the immigrant from the sponsor’s own resources. Divorce does NOT terminate the support obligations the sponsor owes to U.S. Government, and the immigrant spouse has rights as a third-party beneficiary of the support promise the sponsor makes in the I-864 Affidavit. As such, the prenuptial agreement must not violate the contract that our client makes with the government by providing the Affidavit of Support, or the prenup is at risk for being unenforceable. The alimony terms for a prenup where one party is sponsoring an immigrant fiancé must be carefully drafted to avoid potentially invalidating the whole agreement.
IN CONCLUSION
Following best practices, the subject of alimony should be addressed one way or another in a couple’s premarital agreement, because a primary goal of entering into a prenup is to “pre-agree” on the terms that couples fight over in divorce court (such as how property will be split and the right to alimony). Leaving alimony terms out of a prenuptial agreement just leaves the couple to rely on default state laws in the event of divorce, which can lead to a court battle.
Many couples who agree on pre-defined alimony payment terms in their premarital agreement enjoy a peace of mind that enables them to embark on the wonderful rollercoaster of marriage with more confidence, optimism and excitement because they know that they will be on the same page during even the toughest of times.
