Some states do not allow spousal support provisions in prenuptial agreements. In other words, even if there is a prenup, the spouse cannot waive or not pay spousal support after a divorce. However, there are some states that allow spousal support provisions in prenuptial agreements which state that if a divorce occurs, the spouse waives their right to spousal support by signing the prenup.
The laws regulating prenuptial provisions vary from state to state. However, in several states, including California, Illinois, New Jersey, Texas, and Virginia, spousal support provisions are generally enforceable if the agreements are made voluntarily and are impartial.
A spousal support provision is voluntarily agreed to if:
- Both parties voluntarily entered into the prenuptial agreement
- Both parties had time to review the terms of the agreement before signing
A party, who in writing and with sufficient information waives his or her right to spousal support, may not succeed in getting spousal support.
A spousal support provision is impartial if:
- The prenuptial agreement doesn’t unfairly advantage one party over the other
- Each party was fully informed of all of the other party’s property or financial obligations
In some states which allow a waiver of spousal support in prenuptial agreements, courts have stated that any waiver of spousal support or alimony will only be enforced if the condition is fair. This means that the couple can agree or give up spousal support rights in a provision included in the prenuptial agreements in event of a divorce if the results of the waiver is not extremely unfair to one spouse while favoring another spouse.
The judge usually determines whether the spousal support provision included in the prenuptial agreement is fair or not. The judge looks at different factors such as the spouse enforcing the provision assets, income, and financial stability and also looks at the spouse that has to waive the support rights income and financial ability. If the spouse who is waiving the spousal support would be at a extreme disadvantage and the divorce will leave them as a hardship, the spousal support provision would not be enforced.
Spousal support provisions in prenuptial agreements can be complicated and difficult to understand. An experienced family law attorney can help you understand your rights and help you protect your interests.