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. The goal of alimony is to provide financial support to the lower-earning ex-spouse, which often is the one who stays at home to care for children or support the other spouse’s career.
How does waiving alimony in a prenup work?
Generally, one person or both people can waive their right to alimony from the other person.
For example, Jennie and Tom are signing a prenup. Jennie and Tom are both software engineers at Google, and they make similar salaries. They are both self-sufficient and don’t plan on having kids. They both love to work and have every intention of working until retirement. Jennie and Tom decide they will both waive their right to receive alimony from the other person in case of divorce.
If Jennie and Tom were to divorce, how a court would look at their alimony provision in their prenup would depend on the state they are in. For example, let’s say they were in California. If Jennie challenged the alimony provision and sought to receive alimony despite the prenup, the court would look at the situation at the time of the divorce, not the time the prenup was entered into. So, if things had changed drastically at the time of the divorce, a court could throw out the waiver of alimony still. Maybe Jennie hadn’t worked in years and had developed a disability that prevented her from ever working again. The court may decide that alimony is actually appropriate now and throw out the prenup provision (but maybe not! This is just one possibility).
Another possibility is having one person waive and the other not. For example, let’s say Tim and Tina are getting married. Tim is a CEO making a high salary, and Tina is a stay-at-home mom. Tim decides to waive his right to alimony from Tina, but Tina keeps hers. Why? Because Tim already has a lot of money and separate property, and Tina does not. Tina wants to leave the door open for alimony because she does not have an income, whereas Tim doesn’t care because he has plenty of assets.
Pros of waiving alimony
There are pros and cons to everything, including alimony. Let’s first discuss the advantages of waiving alimony:
Pro: Financial Freedom
One of the most significant advantages of waiving alimony is financial freedom. If your partner waives their right to alimony (and a court enforces this provision in your prenup), you will not be required to make alimony payments, allowing you to use your money as you see fit. This can provide a sense of “freedom” and enable you to pursue your goals without being required to pay money to your ex-spouse.
Pro: Maintaining control
By waiving alimony, you can take control of your financial future by ensuring you know exactly what your financial obligations are in the event of a divorce. By putting a waiver of alimony in your prenup, you are essentially outlining the rules for your separation and not leaving it up to the court to decide. That’s a great way to control your financial future.
Pro: Less stress
Alimony payments can be a significant source of stress for many people, and rightfully so, paying money to your ex-spouse may not be at the top of your favorite things-to-do list. Waiving alimony can alleviate this stress, providing peace of mind and allowing you to channel your energy on other important areas of your life, like your kids or your hobbies.
Pro: Moving on after the marriage ends
Waiving alimony can provide closure to the divorce, allowing you to move on with your life and start fresh without any ongoing financial obligations to your ex-spouse. Paying alimony for months or years can make things feel like they’re dragging on, including the stress and drama of your past relationship.
Cons of waiving alimony
Now let’s talk about the disadvantages of waiving alimony.
Con: Less financial security
Waiving alimony may seem like a good idea at the time, but it could leave you in a financially insecure position in the long term. If you are or become the lower-earning spouse, you may wish you had not waived alimony in your prenup. This may be especially true if you are a stay-at-home parent who now has to figure out how to support yourself after years of not doing so.
Con: It could get thrown out anyway
Any contract can be thrown out, including prenups or provisions in prenups. So just because you waived alimony in a valid prenup, a court may refuse to enforce a waiver of alimony clause for a variety of reasons. Maybe the circumstances have changed in such a dire way that enforcing a waiver of the alimony provision would leave someone on public assistance.
Con: Potential Resentment
Waiving alimony can create resentment between spouses, particularly if one feels that they were not adequately compensated for their contributions during the marriage. This can also lead to ongoing conflict and may make it more difficult to co-parent effectively.
For example, let’s say Jennie and Tom are married and waived alimony in their prenup. They live in New York. Tom gets an amazing job offer in Wyoming, and Jennie quits her favorite NYC job to let Tom live out his dreams. She also takes a lower-paying job in Wyoming to accommodate. In a divorce, Jennie may feel tons of resentment toward Tom for not receiving alimony.
Is Waiving Alimony Right for You?
Deciding whether to waive alimony is a personal decision that should be based on your specific circumstances. Consider your financial situations, you and your spouse’s marital roles, your relationship with your spouse, and your future goals before making a decision. Consulting with a financial advisor or divorce lawyer 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.
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 future.
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]