Understanding When Not To Waive Alimony In A Prenuptial Agreement

A lot of couples sign prenuptial agreements to protect an inheritance. Some have been gifted monies that they want to safeguard. Others may be expecting a large sum in the future. Often, the couple’s parents have suggested the use of a prenup. After all, the family does not want to see their monies divvied up in the event of a divorce. Families prefer to see their assets stay within their lineage, passing from children to grandchildren instead of being given to an ex-spouse.

When addressing alimony in a prenuptial agreement, many people will want to waive it, meaning neither spouse can get alimony from the other. For instance, if one spouse receives an income stream from their inherited assets, paying alimony will impact that income stream. Therefore, people living off their family assets will often want to waive alimony.

But remember, you cannot leave your spouse penniless in the event of a divorce. That is not the goal of a prenuptial agreement. The agreement has to be fair. Further, you want the agreement to have teeth so that it is enforceable if it needs to be used. Leaving your ex-spouse destitute is not fair, and it leaves the agreement susceptible to a challenge. If you carve out your inherited assets and waive alimony, you will need to make sure your spouse is provided for through their assets or other assets you give them as part of a divorce.

Many couples begin discussing a prenuptial agreement by just wanting to protect their inheritance and end up caught in the intricacies of planning for a divorce. They are surprised to learn that different scenarios must be considered in drafting the agreement, such as each party’s earning potential, their likely career paths, and care of unborn children. The couple who want to get married and plan their wedding day now find they are in the middle of planning for their divorce and pondering who is going to pick up Junior from school every day. The stress of the impending marriage and negotiating the prenuptial agreement can bring couples to their breaking point.

However, if you only want to protect your inheritance, consider whether you should put alimony back on the table. Not waiving alimony takes the pressure off because you do not need to consider every scenario in the event of a divorce. If you get divorced, one party can go after the other for alimony, making it is less likely that one party will end up penniless. And you will have protected your inherited assets by carving them out as separate property.

It also may not be in your best interest to waive alimony – even if you are the party asking for the prenuptial agreement. Consider a young woman whose parents want her to sign a preputial agreement to protect the inheritance they will one day leave her. They have not gifted her any money and her income is modest. Suppose she waives alimony in her prenuptial agreement and later stops working to become a stay-at-home parent. In that case, her spouse may divorce her after many years of marriage and not have to pay her alimony. If her parents never left her the promised inheritance because they spent it or there was a catastrophic loss of funds, she could be financially devastated. In that situation, it is possible that the prenuptial agreement could be attacked as unconscionable in light of her current situation. However, she may be better protected by not waiving alimony in the agreement. In this case, she would have been better off with no prenuptial agreement.

Planning for a prenuptial agreement is a highly intricate process that requires thorough consideration. There’s no one-size-fits-all solution, and, unfortunately, there’s no crystal ball to predict the future. If your primary concern is protecting your inherited assets, it’s crucial to explore all options, including the decision to waive or not to waive alimony.