Prenups and Alimony: Can You Still Receive Spousal Support with a Prenup?

Mar 18, 2024 | Clauses, Prenuptial Agreements

Alright, let’s talk prenups and alimony – the oh-so-important stuff when it comes to tying the knot. Picture this: you’re all starry-eyed, dreaming of the perfect wedding, but hold up, have you thought about what happens if things don’t go as planned? That’s where prenups come in. They’re like the roadmap to your marriage, laying out the rules for how things will go down both during and if the marriage ends. And guess what else you can put in a prenup? Yep, that’s right–alimony (sometimes called spousal support or maintenance). It’s basically a fancy word for financial support that is paid from one spouse to the other. You may be wondering can I have alimony AND a prenup? We’re here to break this topic down for you, from state laws to creative ways to address alimony in your prenup. 

 


What is a prenup? 

A prenup is a contract between two soon-to-be spouses that lays out various terms that apply both during the marriage and in the event that the marriage ends. For example, terms about how property should be managed during the marriage and how property should be divided in a divorce. Or how alimony should be handled in the case of a divorce (i.e., what this article is all about). Prenups also have certain requirements that must be followed if you want them to hold up in court. These requirements are dictated state-by-state. What is required in Pennsylvania isn’t necessarily the same requirements as what is mandated in California. 

 


What is alimony? 

Alimony, also called spousal support or maintenance (depending on which state you’re in), is the financial support from one spouse to the other in the event of divorce. Alimony is also dictated by state law, so each state has its own rules around when to award alimony and how much is appropriate. It’s a complex area of law, but in essence, most states utilize a list of factors to assess if alimony is appropriate in the situation and then a calculator to determine how much should be paid. 

Let’s look at an example of how states can vary. In Illinois, the spousal maintenance formula is laid out in 750 ILCS 5/504(b-1). The statute says (in part): “The amount of maintenance under this paragraph (1) shall be calculated by taking 33 1/3% of the payor’s net annual income minus 25% of the payee’s net annual income. The amount calculated as maintenance, however, when added to the net income of the payee, shall not result in the payee receiving an amount that is in excess of 40% of the combined net income of the parties.”

Compare this to the calculation of alimony in New York, which you can see here. The statute (NY DOM REL § 236) in New York says in part: “Where the payor’s income is lower than or equal to the income cap, the court shall determine the guideline amount of temporary maintenance as follows:

    • (1) Where child support will be paid for children of the marriage and where the payor as defined in this subdivision is also the non-custodial parent pursuant to the child support standards act:
  • (a) the court shall subtract twenty-five percent of the payee’s income from twenty percent of the payor’s income.
  • (b) the court shall then multiply the sum of the payor’s income and the payee’s income by forty percent.
  • (c) the court shall subtract the payee’s income from the amount derived from clause (b) of this subparagraph.
  • (d) the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.

As you can see above, different states calculate alimony (a.k.a. maintenance) differently based on the formula written in the respective state statute. There may be different calculations for different income brackets, as well, and whether or not child support is being paid may also be a factor. 

The bottom line? Alimony is different from state to state. Whether or not you will be awarded alimony or be required to pay alimony (and how much) will depend on your state laws.

 

How do you include alimony in a prenup? 

You can address alimony in several different ways, including waiving it entirely. Waiving it entirely means that neither party can request alimony in the event of a divorce. Deciding whether to waive alimony depends on factors like financial independence, potential income during marriage, and plans for caregiving. Some couples may choose to waive alimony for a specific period, such as until a certain duration of marriage, to allow for changes in circumstances over time. For example, only waiving alimony if children are NOT had. If children are had, then alimony stays on the table. Keep in mind legal requirements vary by state; for instance, in California, legal representation is mandatory for enforcing alimony waivers in prenups.

Another way to address alimony in a prenup is not to address it at all, leaving the decision to the couple and/or the court at the time of divorce. This approach acknowledges the uncertainty of future circumstances and entrusts the court to make fair determinations. 

For those who want to leave alimony on the table but don’t like the unknowns of leaving it up to a court, including a lump sum equalization payment instead of alimony can be a good resolution. This involves adding a clause that requires a lump sum payment from one spouse to the other, providing definite financial expectations instead of relying on potential alimony rulings.

Another strategy involves setting caps on the amount and/or duration of alimony in the prenup. Caps can be specified as a fixed amount or a percentage of income, offering predictability for both parties. Additionally, prenups can even restrict which sources of income are considered in alimony calculations. This allows individuals to protect specific income streams, such as rental property earnings, from being factored into alimony determinations by the court. 

 

Can you still receive alimony if you have a prenup? 

The answer is–it depends on what you put in your prenup! Did you waive alimony? Did you leave it on the table? 

If your question is: “I want a prenup and alimony, is that possible?” The answer is yes. You can draft a prenup that also allows for one person to receive alimony still. This may mean (generally) one of three things: 

  • Leaving it up to the future you (and alternatively a court) to decide

You can leave it up to the future you and your partner to decide if alimony is appropriate. In the event of a divorce, you and your future spouse can agree on alimony privately or ask a court to decide for you. There are guidelines on alimony in every state, so you should speak with an attorney or check out your state’s laws on what entitles a person to alimony. 

  • Including alimony with a cap or restrictions 

You can also include an alimony clause that specifies exactly what the alimony would be, whether that is with caps or restrictions, such as limiting what income sources can be used towards alimony or how much alimony can be paid. You can model it after the formula listed in your state’s statute or come up with your own model. 

  • Waiving alimony but including a lump sum clause

If you want a more clear, definitive amount, you can waive alimony and offset that with a lump sum clause (a.k.a., a wealth equalization clause), which basically says one party will pay the other party a one-time lump sum payment. For example, Spouse A will pay Spouse B a lump sum of $100,000. And then both parties will waive their right to alimony. This is good for those folks who want something definitive. 

Final thoughts

So, there you have it – the answer is YES, you can have your cake and eat it too (that is, alimony AND a prenup). Whether you’re “waving” goodbye to alimony, setting caps, or leaving it all up to the court, it’s all about finding what works for you and your partner. So, we urge you not to forget to pencil in those prenup talks while you’re planning your big day. After all, nothing says “I love you” like a little financial planning, right? Cheers to happily ever afters – with or without alimony!

You are writing your life story. Get on the same page with a prenup. For love that lasts a lifetime, preparation is key. Safeguard your shared tomorrows, starting today.
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