Whether you want to receive alimony or you want to ensure you never have to pay alimony, including a clause about this topic in a postnup may be a good idea. However, you may be wondering how you go about this in a postnuptial agreement, if it’s legal in your state, and what happens if you get a postnup but don’t address alimony. Let’s explore all things alimony clauses in postnups.
What is alimony?
Alimony, also known as spousal support or maintenance, depending on what state you are in, is the financial support paid from the wealthier spouse to the less wealthy spouse. It is a determination that is typically made by a state guideline/formula and/or a combination of judicial discretion. Some states have a hard and fast formula that dictates how much alimony, whereas other states leave room for the judge to decide on what is fair. The question of whether or not alimony is appropriate in the first place is also dictated by state law.
Why would someone want to include alimony clauses in their postnup?
Couples often want to address alimony in a prenup and/or postnup because they want to clarify that they are either (a) not on the hook for alimony OR (b) will be supported by alimony one day. For example, if two people are financially independent, but there is a large wealth gap, and the wealthier person wants to ensure they are not on the hook for alimony. Or, as another example, if one person doesn’t work and stays home with the kids, they will likely want to ensure that alimony is on the table in a divorce.
Different ways to include alimony in a postnup
So, what are the different options when it comes to alimony in postnups? Let’s talk about the different ways to address alimony in a postnup.
1. Waive it completely
One way to handle alimony is for both spouses to waive their right to seek alimony completely. This means both parties effectively agree never to request financial support from one another if they get a divorce.
2. Waive it only under certain circumstances
Same thing as above, except the couple only waives the alimony if certain conditions occur. For example, a couple may say that alimony is only waived if no children are had in the marriage. If children are had, then alimony is on the table. Another thing to condition it on is the duration of the marriage.
3. Waive it but add in a lump sum clause
Some couples may want to waive alimony but add in a clause where the wealthier spouse pays the other a lump sum amount upon the divorce. This would be to create clarity in the amount owed because alimony can be open-ended and dependent on a judge’s decision.
4. Cap it at a certain amount
Limiting the possible amount of alimony that can be paid to one spouse. For example, saying that only a certain percentage of the income or separate property shall be paid as alimony to the other in the event of a divorce.
5. Limit the types of income a court can calculate alimony from
Some people may simply want to exclude certain streams of income from the alimony calculator. For example, if someone has a full-time job and also income from a rental property, they may want to exclude the rental income from the calculation of alimony to limit what could possibly be paid.
6. Provide more alimony than would be allowed by law
This is rare, but in some cases, a spouse may want to provide more than what would be allocated by law. For example, allocating a larger percentage of income to be paid to the other spouse than is required by law.
States that do not allow alimony in postnups
There are a handful of states that say you can get a postnup, but you cannot include terms about alimony in them. Some states are cautious about alimony clauses in postnups because they are concerned that these agreements may be negotiated under unfair circumstances, potentially leaving one spouse at a significant financial disadvantage.
With that said, here are the states where you should not include alimony clauses (or should, at minimum, consult an attorney in the state to discuss this issue):
- California (Cal Fam Code § 1620)
- North Carolina (N.C. Gen. Stat. § 52-10)
- Nevada (Nev. Rev. Stat. § 123.070)
- South Dakota (S.D. Codified Laws § 25-2-18)
- Montana (Mont. Code § 40-2-303)
- New Mexico (N.M. Stat. § 40-2-2)
What happens if you don’t talk about alimony in a postnup?
If you are in one of the above states and you cannot include alimony or you simply don’t want to include alimony in your postnup, what does that mean for you? Well, it means that if you get a divorce, and your postnup is enforced, the judge will apply the terms of your postnup regarding property division but they will have to decide on alimony. In other words, the default state law will apply to your situation on alimony, which means you may or may not be required to pay it. Just because you didn’t address alimony in your postnup doesn’t automatically mean you will be required to pay it.
The bottom line on including alimony in a postnuptial agreement
So, whether you want to include alimony in your postnuptial agreement, or waive it entirely, it’s definitely something you can address (provided your state allows it, of course). You have options to cap it, set specific terms, or even eliminate it completely. The key is to work with an experienced attorney who can guide you through the process and help you create an agreement that makes sense for both you and your spouse. Remember, a postnuptial agreement is about building a stronger foundation for your marriage, so make sure it reflects a sense of fairness and mutual understanding.
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: Nicole@Helloprenup.com
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