Waiving alimony in a prenup can be “dangerous” for people who cannot financially support themselves. Why is that dangerous? Because if someone who has no way of supporting themselves also does not have access to alimony after a divorce, they may have a very hard road ahead of them to “get back on their feet.” Below, we will discuss the importance of alimony, what waiving alimony means, what is so dangerous about it, and when waiving alimony may be appropriate (plus some examples at the end). Let’s dive in.
The Importance of Alimony
Alimony is an important aspect of divorce or separation negotiations. It provides a safety net for the spouse who may have been financially dependent on the other during the marriage.
Alimony is dictated by state law, and each state has a set of factors to help calculate alimony. These factors may include the length of the marriage, the future earning capacity of each spouse, and the standard of living enjoyed during the marriage. The duration and amount of alimony are determined on a case-by-case basis and by specific state laws. How much alimony that is awarded for one person in Florida may look different than what is awarded for the same person in New York.
What does ‘waiving alimony’ mean?
Waiving alimony means that one spouse agrees to give up their right to receive financial support from the other party after a marriage ends, such as you might do in a prenuptial agreement or settlement agreement. When a spouse waives their right to alimony, they are essentially giving up their entitlement to financial support from their ex-spouse.
For example, John and Jennie are getting married. John is a CEO, and Jennie is a stay-at-home Mom; they have a staggering difference in wealth–Jennie has much less than John. They are getting a prenup, and Jennie is considering waiving alimony in the prenup. This means that in a divorce, she will not be entitled to receive alimony. The result would mean Jennie would most likely need to find a job after not having one for many years. Do you think she should waive alimony? Let’s discuss more below.
What do we mean by self-supporting?
Before we dive into the dangers of waiving alimony, let’s talk about self-support. For the context of this article, self-supporting refers to the ability of an individual to support themselves financially without relying on financial assistance from others.
Generally, self-supporting means an individual must have sufficient income or assets to meet their basic needs, such as housing, food, clothing, and transportation. This typically requires having a steady source of income, whether through employment, investments, or other means.
Someone may also not currently be self-supporting but may be able to become self-supporting in the future. The factors a court may look at to make this determination could be their work experience/history, education level, job skills, health, and age. If a stay-at-home mom of four years has a Ph.D., is 26 years old, and is in great health, a court may be more likely to deem this person as having the ability to become self-supporting in the future. On the other hand, if a stay-at-home mom of twenty years has no college degree, is 50 years old, and is in unstable health, the court may be more likely to deem this person unable to become self-supporting.
Standard of living
Another factor to consider in this equation is the standard of living during the marriage. Many states look to the standard of living enjoyed during the marriage as a factor in determining alimony. For example, you may be self-supporting technically, but your self-support would be way below the standard of living you enjoyed during the marriage.
Let’s say Tim and Tanya are getting married; Tim is a trust fund baby with a net worth of about $50 million. Tanya has no assets and is a teacher making a salary of $50,000 per year. If Tim and Tanya were married for 20+ years, enjoying the lavish lifestyle provided by Tim’s trust fund, a court might still award alimony to Tanya even though, technically, she is self-supporting with her teacher salary of $50,000.
The need for alimony versus the ability to pay
Another factor to consider when thinking about self-support is the need. For example, let’s say Melissa makes $250,000 per year, and Mark makes $600,000 per year. Sure, Mark has the ability to pay alimony, but does Melissa have the need? That is a determination for the court to make, and they might say that she does not have the need since she already makes plenty to support herself and more. So while the exact standard of living may change slightly, it may not have enough of an effect to actually warrant alimony.
Why Waiving Alimony Can Be Dangerous
Now, let’s get into what the dangers are of waiving alimony.
If you are not self-supporting and have a low future ability to become self-supporting, waiving spousal support can leave you in a difficult financial situation. You may find yourself struggling to make ends meet, especially if you are also responsible for children or other expenses.
Difficulty Regaining Alimony
If you waive spousal support and later find that you need it, it may be difficult or impossible to regain it after waiving in a prenup. This is especially true if your ex-spouse has already moved on financially and is no longer able to provide support.
Lower Standard of Living
Waiving spousal support can also result in a reduced standard of living, especially if you were used to a certain level of financial stability during your marriage. This can be particularly challenging if you have children to support.
Finally, waiving spousal support without being self-supporting can lead to legal complications down the road. For example, if you are unable to pay your bills or support your children, you may end up in court trying to fight the prenup terms or modify a settlement agreement.
It’s difficult to predict what the future may hold, and unforeseen circumstances such as a job loss, disability, or illness could make waiving alimony in a prenup a bad idea. If either spouse experiences financial hardship due to unforeseen circumstances, they may regret waiving their right to alimony in the prenup.
When Waiving Alimony May Be Appropriate
While there are potential dangers to waiving spousal support without being self-supporting, there are also situations where it may be appropriate to do so.
You Have a High Earning Potential
If you have a high earning potential and are confident in your ability to support yourself, waiving spousal support may make sense. For example, if you just graduated from medical school and are on your way to becoming a doctor, you may feel confident in your ability to support yourself now and for many years to come.
You Have Enough Assets to Support Yourself
If you have significant assets that can generate income, such as rental properties or investments, you may be able to support yourself without alimony. For example, let’s say you have a very stable flow of income from a rental property you inherited from your parents. You receive about $10,000 a month in rental income. This may leave you feeling comfortable and confident that you will always be self-supporting.
You Have Other Sources of Income
If you have other sources of income, such as a future inheritance, business, or trust fund, you may not need alimony to maintain your standard of living.
Examples of how waiving alimony may be dangerous
Katie and Connor are engaged. Katie is a nurse, and Connor is a trust fund baby and also a doctor. Katie has no significant assets, while Connor has a net worth of about $10 million. Katie wants to make sure that Connor knows she’s not in the relationship for the money, so she agrees to waive alimony in her prenup and rights to any of his assets. They get married and have kids. Katie stays at home with the kids, forgoing her career as a nurse. About five years of marriage pass, and Connor cheats on Katie, leading Katie to file for divorce. Unfortunately, she now has to abide by the rules of her valid and enforceable prenup in the divorce, which declares that she has no rights to alimony or any of Connor’s assets. She lives in a no-fault state, so the fact that Connor cheated has no bearing on the outcome.
Danielle and David are engaged to be married. They both have about the same amount of assets and income. They decide since they are both self-supporting, they can comfortably waive alimony in their prenup. They get married, and years pass. Unfortunately, Danielle suffers from an illness that prevents her from working. She relies on David for financial support during this time. The illness is unlikely to resolve. Eventually, they file for divorce, and since they waived alimony in their prenup, Danielle is now in a very tough position and has to find work despite her illness because she is losing David’s financial support. Now, if this prenup is challenged, a court may throw it out (depending on the state laws and circumstances) based on the fact that the circumstances have changed in such a dire way, but it may not. It all depends on the state laws and the specific circumstances.
In conclusion, while waiving alimony may seem like a good idea in some situations, it can be a dangerous decision if you are not self-supporting and have minimal ability to become self-supporting. There is also the possibility of unforeseen circumstances such as job loss, disability, etc. The bottom line? Waiving alimony should not be taken lightly and should be carefully considered in a prenup or other document.
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]