To waive or not to waive, that is the question. And a good one, at that! It’s a tough decision to make for some people, especially if one partner is higher-earning, disabled, or quits their job to support their partner. Not to mention, the impact of waiving alimony is deep, and the decision should not be taken lightly. Let’s discuss the pros and cons of waiving alimony to help you make an informed decision.
What is alimony?
Alimony, also known called spousal support or maintenance in some states, is a court-ordered financial payment from one ex-spouse to another after a marriage ends.
Permanent or Temporary: Alimony can be permanent payments or temporary, depending on your situation and what your state law says.
Example: If the spouses have been married for 50 years, and one spouse never worked, while the other financially supported that spouse the entire time, and they have no other means of supporting themselves, a court may be more likely to award permanent alimony to that couple. On the other hand, if the couple had been married only 5 years, a court may be more likely to order temporary alimony.
The purpose of alimony: The goal of alimony is to provide financial support to the lower-earning ex-spouse, who often is the one who stays at home to care for children or support the wealthier spouse’s career.
How waiving alimony in a prenup works
Let’s dive into the ins and outs of how waiving alimony (a.k.a. spousal support) in a prenup works:
Key Concepts to Understand:
- Alimony (or spousal support): Payments made from one ex-spouse to the other after a divorce, often to help maintain a similar standard of living.
- Prenuptial Agreement (Prenup): A contract outlining financial arrangements and asset division in the event of a divorce.
- Waiving Alimony: Contractually agreeing with your spouse to not request alimony from one another in a future divorce.
How Courts Evaluate Alimony Waivers
- State Laws: Rules vary by state. Some states have strict requirements for alimony waivers, while others give courts more leeway. For example, in California, there are strict requirements around alimony waivers in CA–if you waive alimony, you must be represented by a lawyer.
- Circumstances at Time of Divorce: Courts often consider circumstances at the time of divorce, not when the prenup was signed, to determine if an alimony waiver is appropriate. Life changes (disability, job loss) could potentially invalidate a waiver.
- Fairness of Waiver: In addition, many states say that if the alimony waiver would put one spouse on public assistance, then it should not be upheld.
Example Scenario: Jennie and Tom
- Background: Jennie and Tom are both software engineers at Google, making similar salaries. Both are self-sufficient and financially independent people who don’t plan on having kids.
- Prenup: Both waive alimony due to similar incomes and career plans.
- Context at Divorce: After 3 years, the parties divorce. Both spouses are still financially independent and without children.
- Potential Court Ruling: The waiver is likely upheld since both parties are still financially self-sufficient.
Important Note: Prenup laws can be complex, and laws vary by state. An alimony waiver that would be upheld in Texas may not be upheld in California.
Pros of waiving alimony in a prenup
Now, let’s dive into all the benefits that can come from waiving alimony in your prenup:
- Financial Freedom: No future alimony payments mean more money for your own goals and financial flexibility without ongoing obligations to your ex-spouse. Once you have severed ties, you can maintain financial freedom.
- Maintaining Control: Waiving alimony in a prenup offers predictability in the event of a divorce. You know your financial responsibilities in case of divorce, avoiding potential court battles over spousal support.
- Less Stress: Eliminating potentially contentious alimony negotiations can reduce stress levels and allow for a cleaner separation. For instance, without a waiver of alimony, you and your spouse could spend lots of attorney fees and time going back and forth on whether or not alimony should be awarded.
- Moving On: A clear financial break can help you close the chapter on your marriage and move forward without ongoing financial ties. This can relieve stress and make your life a whole lot easier.
Takeaway: There are plenty of benefits to waiving alimony, but it doesn’t always make sense for everyone in every situation!
Cons of waiving alimony in a prenup
Turning to the downsides of waiving alimony:
- Less Financial Security: If you’re the lower-earning spouse or have sacrificed career advancement for the marriage, waiving alimony could leave you vulnerable down the line. For example, if you have been a stay-at-home mom for your entire marriage (let’s say 10 years), getting back into the workforce may be difficult. Trying to figure out how to support yourself financially while also trying to get back on your feet can make your life difficult because of the waiver.
- Court Challenges: Prenups aren’t always ironclad. Courts may overturn alimony waivers if circumstances change drastically (e.g., disability), and enforcing it would cause extreme hardship. For example, if you waived alimony when you and your partner were both financially self-sufficient and 20 years later you divorce, but at the time of divorce, enforcing an alimony waiver would cause extreme financial hardship to you, it may be thrown out.
- Potential Resentment: If one partner feels they sacrificed more for the relationship, resentment could arise over the lack of spousal support post-divorce. For instance, if you waive alimony, and one spouse supported the other while they rose to financial success, it may be a tough pill to swallow for the person who supported the other when they don’t get to reap those benefits.
Important considerations
Sure, there are pros and cons, but there’s more to it than that. These are some other important considerations to understand when waiving alimony:
- State Laws: Rules on alimony waivers vary by state. For example, some states may scrutinize alimony waivers more than others, meaning it may be more likely to be tossed out, depending on your state.
- Life Changes: Unforeseen circumstances (job loss, health issues) could make the waiver unfair. It’s wise to re-evaluate any prenup over time.
- Fairness: Discuss this thoroughly with your partner. An overly one-sided waiver might damage the relationship or be challenged later.
Example Scenario: Jennie and Tom waive alimony in their prenup initially. Years later, Tom’s career flourishes while Jennie stays home with the kids. If they divorce, Jennie might regret the waiver, feeling it doesn’t reflect her contribution to the family.
Key Takeaway: Weighing the pros and cons of waiving alimony thoroughly and potentially seeking out legal advice on your situation is crucial for making an informed decision that protects both partners in the long run.
Is waiving alimony right for you?
Deciding whether to waive alimony is a personal decision that should be based on your specific circumstances. Here are some questions to ask yourselves when determining if an alimony waiver is right for you and your partner:
- What is each of your individual financial situations?
- Are both of you self-sufficient?
- Do you plan on having children?
- What are your goals for future marital roles? (Does one person play on staying home?)
- What are your future financial goals?
- Do both parties plan on working forever?
- How would you feel if you supported your spouse while they rose to a high level in their career and then got a divorce with an alimony waiver?
Consider consulting with a financial advisor or lawyer who can also provide valuable insights and help you make an informed decision.
Waiving alimony caveat in California
There’s an important caveat in California to understand about waiving spousal support (a.k.a. alimony).
When you waive spousal support in your prenup in California, you are required to have legal representation. If you do not waive spousal support in your prenup in California, you usually do not need legal representation and can conduct your whole prenup without a lawyer. If both people are waiving alimony, then both people need their own lawyer.
Why is this a rule in California? The California legislature may want to ensure those forfeiting their right to alimony in a prenup are represented by a lawyer. A lawyer can ensure that the person waiving their right is aware of the impact of this decision and all of their options when doing so.
The bottom line on alimony waivers
In conclusion, waiving alimony can be a good choice for some people, but it is not the right decision for everyone. Consider the pros and cons carefully, and possibly consult with experts before making any decisions. Ultimately, the decision to waive alimony should be based on your individual circumstances and what is best for you and your partner’s futures. j
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]
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