ALIMONY AND PRENUPTIAL AGREEMENTS: 2022 UPDATE
Some people rebuff the many benefits of entering into a prenuptial agreement because they believe that the primary purpose of a prenup is to avoid alimony (often referred to as “spousal support” or “maintenance”). 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. Such concerns are common and very reasonable, particularly among people getting married for the first time. No one knows what the future may bring.
Over the years I have drafted marital agreements containing a wide variety of spousal support terms, because everyone’s situation is unique. Although it is very common for couples to enter into a premarital agreement under which they completely waive the right to receive alimony in the event of divorce, many of my clients are pleasantly surprised to learn that a prenup can actually guarantee the right to payment of some minimum amount of alimony if the marriage is dissolved (e.g. a lump sum payment of $50,000 upon divorce). More often, couples choose to allow but limit the amount of alimony available to either of them in the event of divorce, so that each party knows their “worst case” scenario.
Some variations of alimony terms in marital agreements we have recently drafted include:
Monthly alimony payments to a spouse for three (3) years, but only if they divorce after their fifth anniversary (VA);
Alimony equal to $5,000 for each full year of marriage, if the receiving spouse is unemployed at the time of their separation (FL); and
Either spouse may seek alimony in an amount not to exceed their last annual salary, if that spouse is unemployed at the time of separation leading to a divorce (NY).
Many couples decide to allow a spouse who is unemployed at the time of separation leading to divorce (e.g. a stay-at-home parent situation) to seek some pre-agreed amount of alimony, but otherwise waive the right to seek spousal support if both are employed. For the most part, a couple entering into a premarital agreement (or postnuptial agreement) can freely choose whatever alimony terms make them comfortable to enter the marriage, given their unique personal situation. Virginia’s Premarital Agreement Act clearly provides that parties to a premarital agreement may agree in advance if and under what conditions either of them can seek spousal support in the event of a divorce.
Florida and New Jersey have enacted versions of the Uniform Premarital Agreement Act and have statutes on the books that expressly state that parties to a premarital agreement may agree on the “establishment, modification, waiver or elimination of spousal support.” See Fla. Stat. §61.079(4)(a)(4). Likewise, Nevada has a very straightforward version of the UPAA that clearly states that a couple can use a premarital agreement to modify or eliminate alimony or support or maintenance of a spouse (NRS 123A.050(d)). Importantly, the alimony terms in a prenup can be amended (in writing) to provide for a different 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.
Following best practices, the subject of alimony should be addressed one way or another in a 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 spousal support). Omitting spousal support terms from a prenuptial agreement just leaves the spouses to rely on default state laws in the event of divorce, which can lead to a court battle. Couples who agree on predefined alimony payment terms in their premarital agreement can enjoy 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.
 For example, consider the case of Steffans v. Steffans (N.J. Super.App. Div. 2019, Docket No. A-0192-18T1), where the Superior Court of New Jersey Appellate Division considered the enforceability of a prenuptial agreement that called for alimony payments to one spouse upon divorce, depending on the length of the marriage. If the marriage lasted twenty-six years, the spouse seeking alimony would receive a total of $500,000, paid over a course of five years in equal bi-monthly installments. The court upheld the decision of the lower court, which found the alimony terms of their prenuptial agreement enforceable under the plain language of New Jersey’s Uniform Premarital Agreement Act.
 Also refer to the case of Famiglio v. Famiglio, 279 So.3d 736 (Fla. App. 2019), where the Second District Court of Appeals for the State of Florida enforced the terms of a prenuptial agreement that provided that if the parties divorced after seven (7) full years of marriage, the wife would receive a lump sum alimony payment in the amount of $2.7 million; and if an action for divorce was filed after ten (10) full years of marriage, the wife would receive $4.2 million.