Exes and alimony…does it have to be that way? It depends on your situation! Alimony, also known as spousal support, is money the wealthier ex-spouse pays the other less wealthy spouse during or after a divorce. Its purpose is to help the lower-earning spouse keep their standard of living, but it’s not guaranteed. State laws, your income, and even a prenuptial agreement can all play a role in whether or not alimony is awarded. Want to take control of alimony possibilities? Then get a prenup! There are lots of ways to get creative and address alimony in your prenuptial agreement to match your unique needs. Keep reading to learn all of the ways you can put alimony into a prenuptial agreement.
What is alimony (a.k.a. spousal support)?
Alimony, also called spousal support or maintenance, depending on the state you’re in, is the financial support paid from one ex-spouse to the other financially disadvantaged spouse in the event of divorce. Here’s more of what you need to know about alimony:
- It has many names: Alimony is also called spousal support, spousal maintenance, or just maintenance. Each state has it’s own legal term but they all mean the same thing.
- Alimony is not automatic: Sometimes one ex-spouse pays the other support, sometimes not. It depends on your state’s laws and your individual situation. However, paying alimony is generally not automatic in a divorce.
- The purpose of alimony: Alimony is used to help the spouse who has less to maintain their lifestyle that they enjoyed during the marriage for a set period of time (or forever).
- State differences: Each state has its own rules about who qualifies, how much is paid, and for how long. For example, how alimony is awarded in California is different from that in New York.
- How is it decided? Generally, courts look at things like how long you were married, your age, income differences, who has custody of the children, and other factors.
For example, in California, according to California Family Code Section 4320, a court will first determine if spousal support is necessary by looking at a set of factors, such as the duration of the marriage, the age of the parties, the standard of living they had during the marriage, and more. If the court deems spousal support necessary, the next step is how much and for how long. Depending on that, there are different formulas for reaching a conclusion.
Can you get out of paying alimony with a prenup?
One of the ways you can address alimony in a prenup is to waive it altogether. This means alimony is completely off the table in the event of a divorce, and neither party can request it from a court during the divorce proceedings (as long as the agreement is enforceable). Courts in some states may be able to strike your alimony waiver clause if upholding it would mean your spouse would go on public assistance or become financially destitute.
But how do you know if you should waive alimony? Here’s what to consider:
- Current income: Do you both make your own money? Are you both financially independent? Or does one of you financially depend on the other for income?
- Future plans: Do you have plans for one of you to become a stay-at-home parent? What about plans to quit your job at any point in the future for whatever reason (i.e., your lifelong goal is to become a yoga teacher and quit your corporate career)
- Unexpected events: Could a possible disability affect future earning power? Obviously, it’s impossible to predict the future, but if you already have an illness or something you believe could cause any future issues, waiving alimony may be damaging.
Remember, laws vary by state! For example, in California, you must have a lawyer sign your prenup to have a valid alimony waiver. In New York, as of 2025, alimony waivers in prenuptial agreements must include the specific incomes of each party plus the actual amount of alimony that they would get.
Leaving alimony for the court to decide
One way of addressing alimony could be to not address it at all! Yes, that’s right, you can simply add a clause in your prenup that says you and your partner do not want to decide on alimony now. You want to leave the decision in the court’s hands in the event of a divorce.
Why would anyone do this? Well, they might feel like, without a crystal ball, it’s so hard to determine whether alimony would be appropriate in the future, so let a court decide then. Maybe they’re not sure if someone will stay home with the kids yet. Maybe one person is starting a business, and the other isn’t. What if something tragic happens, like an accident, and someone becomes disabled? The possibilities of the future are truly endless. A court’s job is to make fair decisions, so it’s reasonable that a couple would leave it up to the divorce judge.
Waiving alimony but including a lump sum clause
Let’s say you are dead set on waiving alimony, but your partner is not. There is a way to offset this waiver by including in your prenup an “equalization payment” in the form of a lump sum clause that will balance out the loss of alimony. You and your partner can determine any amount for this lump sum; it should just be reasonable and actually payable. For example, let’s say John is the breadwinner and Mary stays home with the kids. They waive alimony, but John agrees to pay Mary a $100,000 lump sum if they split up. This “equalizes” the wealth while still allowing John the freedom of not paying alimony. In addition, John doesn’t have to worry about what a court might decide about alimony years from now. Alimony can be permanent or ongoing, and creating a one-time payment instead of ongoing support can allow for peace of mind for both parties. Plus, no one wants to be financially tied to their ex forever. Being awarded alimony could keep ties between exes for an unknown amount of time after the divorce is final.
As you can see, putting in a lump sum clause that helps balance out the wealth instead of alimony is a great compromise for some couples, especially when parties are dead set on not paying alimony.
Putting limits on alimony
Another way to address alimony in your prenup is to explicitly write in a cap on the amount and/or duration of alimony. For example, putting a cap on the amount of alimony that could be paid at all, or simply a cap on the percentage of income. Maybe you want to say that alimony is capped at no more than $100,000 in total alimony paid. Or maybe you want to say alimony is capped at no more than 10% of the yearly income. You can definitely get a bit creative with this and determine a cap that makes sense for you and your partner. However, it’s crucial to remember that courts still may scrutinize caps that appear excessively unfair or could result in undue hardship for one party, especially after a long marriage.
Limiting the sources of income that can be used in determining alimony
Each state has its own method of determining how much alimony and for how long. States may look at the different sources of income from the paying spouse to calculate a percentage and dictate alimony. Here’s an example of limiting sources of income for alimony in a prenup:
- Divorce court says alimony is appropriate: John is required to pay alimony, as ordered by the court. His sources of income are rental property, dividends, and a salary. The court adds up his total income for the year and calculates alimony based on his sources of income (unless it says otherwise in his prenup).
- What the prenup says: However, in the prenuptial agreement, John had included a provision that says something like, “Rental property income shall not be included in any alimony calculation because it is allocated for John’s children’s inheritance.”
- Outcome: In this case, if this is an enforceable clause, the court will only add up the dividends and salary when determining alimony.
The bottom line is that this is a great option for couples who want to keep alimony as an option while still protecting the person paying alimony’s finances. Win-win for both parties.
Can a prenup completely block alimony in every case?
Alimony clauses in prenups don’t come without a warning. Courts can be wary of too much limitation on alimony or waivers of alimony, and they may be able to strike it if they find it necessary. Here’s why:
- Unconscionability: If a prenuptial agreement leaves one spouse with nothing while the other is counting their Lambos, a court might ignore the alimony waiver. Another example would be if the alimony waiver required one person to use public assistance.
- Why courts care: Courts aim for basic fairness and don’t want someone ending up on public assistance due to divorce or left destitute while the other person is well off. Yes, even if they signed a prenup.
- Circumstances matter: A prenup that seemed okay when you were both earning well might be unfair if one of you gets sick or loses your job much later.
- Real Example: In Indiana, a court heard a case where a man signed a prenup that said he would pay his wife $500k in alimony. His net worth at the time of the prenup signing was $31 million. At the time of divorce, his net worth dropped to $300k. He couldn’t possibly pay his wife $500k in alimony, which would be outrageously unfair. So, the court struck the alimony clause.
The takeaway is that even if you get a prenup with an alimony waiver or other restrictions on alimony, it could be struck by a court one day if it’s outrageously unfair, leaves one person destitute, and/or requires one party to go on public assistance.
State law variations on alimony in prenuptial agreements
It’s important to address the state law variations on addressing alimony in prenuptial agreements. California and New York are standout examples of how addressing alimony in prenuptial agreements can be tricky and extremely state-specific. Here’s what to know in each state:
- California: In California, according to CA Fam Code § 1612(c), anyone waiving their rights to spousal support must be represented by legal counsel. This means that regardless of the way you and your partner address spousal support in your prenup–if you are altering it in any way, you should be hiring an attorney. This is because California wants to ensure its people understand the true impact of restricting spousal support rights by having a lawyer explain and advise them on the issue.
- New York: A recent case, stemming from New York in January 2025, released new requirements for alimony waivers in New York prenuptial agreements. Any alimony waiver must now include actual calculations of the potential alimony that a party would be giving up. This must include each person’s income, plus how they got to the calculation.
As you can see, including alimony in a prenuptial agreement can be incredibly state-specific and even have specific language that is required, such as in New York.
The bottom line on addressing alimony in your prenup
How you address alimony in your prenup is ultimately up to you. What you decide will depend on your financial situation, life goals, and each person’s wishes. There are many options, but some to consider may be waiving alimony altogether, leaving it in for the court to decide, equalization payments in exchange for alimony waiver, and limiting income sources for alimony payments. Don’t forget about the potential pitfall of unconscionability in a prenuptial agreement, alimony waivers, or limitations. Whatever option you go with, make sure you and your partner are aligned on the decision and walk into the agreement feeling confident and secure. Happy planning!
Frequently Asked Questions (FAQs) about addressing alimony
This is definitely a tough topic for many people to understand, so here are some more of your questions answered:
Q: Do prenups protect you from alimony?
A: They can! It depends on what your state law says (some states do not allow you to include alimony provisions and/or have strict regulations around it). If you are in a state that allows for alimony provisions in prenups and if you and your future spouse agree upon it, then YES, a prenup can protect you from alimony.
Q: Do judges throw out prenups?
A: In certain limited cases, yes, it is possible for a judge to throw out a prenup. However, this is no easy feat, as it requires legal fees and a solid argument to challenge a prenup in court.
Q: Can a prenup leave a spouse with nothing?
A: It depends. In some states and situations, it may be permissible, but generally, egregiously unfair prenups (i.e., unconscionable) are not upheld in most situations.
Q: Can prenups address child support?
A: NO! Generally, prenups may not include clauses about child support. Keep in mind child support is NOT the same as alimony; it is a separate and distinct payment that a court may award in a divorce. Alimony = financial support for the spouse. Child support = financial support for the child.
Raymond Hekmat’s practice of law has been devoted exclusively to areas of California family law focusing on prenuptial agreements, divorce consulting and mediation, since earning his Juris Doctorate degree from Loyola Law School in 2009. During his tenure at Loyola, Raymond was President of the Evening Bar Association, and was awarded the Alumni Association Governors’ Alumni Award. While earning his degree, Raymond worked as a law clerk, and later an associate, for a Beverly Hills family law firm. Prior to founding HLM, Raymond’s practice involved complex family law litigation involving high-asset property division, complex custody litigation, jurisdictional issues, division of community estates and prenuptial agreements.
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