Addressing Spousal Support in a Prenuptial Agreement

Many couples limit their prenuptial agreements to topics like the division of marital and separate properties. But if you're already taking the time to create a prenuptial agreement, you may as well make it as comprehensive as possible and include spousal support provisions.

It’s not necessary to decide at the time that you create your prenuptial agreement the amount that one of you would need to pay to the other as spousal support upon divorce, but you should at least address the topic to avoid any confusion later by addressing spousal support in one of these three ways: 1) t a clear waiver of spousal support; 2) clear preservation of their right to spousal support; or 3) spousal support will only be paid upon the occurrence of specific conditions.

Option 1: Both Parties Waive Spousal Support

If you and your partner are both employed and expect to work throughout the marriage, or you feel confident you'll always have access to sufficient resources, you may decide to waive spousal support in your premarital agreement. In the event of divorce, neither you nor your spouse could seek spousal support as one of the terms of the divorce unless you both agree later to that change.

Your attorney will help you consider possible "what-ifs" that will help you consider whether you  should or shouldn’t waive spousal support.  For example, what if one of you lost your job unexpectedly before deciding to divorce? What if you or your spouse endures a physical disability that makes you unable to work?

If after exploring these questions, you and your fiance both agree to waive spousal support, your attorney will make this clear in your prenuptial agreement so that there is clarity in the event the marriage ends.

Option 2: One or Both Parties Choose Not to Waive Spousal Support

Financial circumstances can change, so leaving the topic of spousal support open to further discussion is a viable option as well. You and/or your spouse may decide not to waive spousal support in a prenuptial agreement but also opt not to create any specific guidelines.

You may wonder, "Why even address spousal support in the prenup if we're not going to make any decisions about it?" If you include a statement that you'll discuss spousal support when the time comes it shows a future attorney or a judge that you and your future spouse talked about this issue and made a conscious decision to leave the issue open. In the event of divorce, it will be clear that this is an issue to be discussed and that no decision around this issue was previously agreed to.

Option 3: Both Parties Agree on Certain Conditions for Spousal Support

Many couples use their prenuptial agreements to explore possible circumstances in which they may owe spousal support. Considering these potential scenarios and addressing them can help you and your partner plan for a potential divorce and understand what's important to you right now.

For instance, if you have no intention of ever paying spousal support, but your spouse thinks you should pay it under certain circumstances, you can discuss the matter further before entering your marriage.

Couples often agree to pay spousal support in the following circumstances:

• If they have children under a certain age at the time of the divorce
• If one party has been a stay-at-home parent and either still is at the time of the divorce or has returned to the workforce but isn’t yet earning the income they were earning previously 
• If one party is involuntarily out of the workforce, such as if they were laid off and can't find another job or have become incapacitated in some way

New York has specific statutes that calculate spousal support based on your income and the duration of your marriage, but if you and your spouse would rather use a different formula or duration, you can outline this in the prenuptial agreement as well. For instance, high-net-worth couples often find that the state's statute wouldn’t properly provide for the lifestyle they plan to enjoy given their level of wealth.

Contact Vacca Family Law Group Attorneys for Help Drafting a Prenuptial Agreement

However you and your future spouse choose to navigate the issue, addressing spousal support in your prenuptial agreement can save you time and stress down the road. For legal assistance with your prenuptial agreement, contact the lawyers at Vacca Family Law Group today.