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Josh Gold
Attorney at JUSTLAW
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Spousal Support Provisions in Prenups

Marriage. It is supposed to be happily ever after for the bride and groom.

However, not all marriages are built to last that long, as some end sooner than expected. The average marriage length for a marriage that ends in divorce is just eight years. In the latter scenario, couples can benefit from knowing they have a prenuptial agreement in place. Prenuptial agreements (also referred to commonly as prenups, premarital agreements and antenuptial agreements) between spouses allow them to protect certain assets.

Those who are not familiar with them may think they only pertain to wealthy couples. They don’t. Any couple can benefit from one, regardless of how much money they make or how old they are. Spousal support provisions exist in these agreements, which is why it is important for couples to know what they are and how they work. Here is everything you need to know about a prenuptial contract.

What Are Prenuptial Agreements?

Prenuptial agreements are contracts that both spouses enter and sign before they get married. Generally, the contract outlines rights to certain assets such as property, business ownership, and cash acquired before the marriage in case the marriage results in divorce. This agreement is usually designed to protect a spouse that has significantly more assets than the other spouse. A perfect example can be one spouse who has $10 million in their bank account plus a house worth $1 million while the other spouse has maybe $10,000 in their bank account and no other assets.

These agreements can also protect investments that were made by one party before the marriage. An example can be if someone had bitcoin back in 2011 and decided to include that in a prenuptial agreement. In this scenario, the couple could have ended up divorced eight years later, when the bitcoin was worth significantly more. That would be a case where the previous investment could possibly be protected for one spouse.

Spousal Support Provisions

Spousal support provisions are one part of a prenuptial agreement that will most likely need to be ironed out. This part of the agreement lays out how much financial support one spouse will receive in the event of a divorce. In other words, it is coming up with alimony terms before a divorce. In some cases, spouses may be asked to waive their right to spousal support outright and receive nothing if there is a divorce. Sometimes, there can be specific clauses in spousal support provisions that may restrict that spouse from receiving any support if they commit certain actions, like adultery.

In some states, it is not only against the law, but it can affect how much the cheating party gets in a divorce settlement. The question is, does it have any impact in New York? The answer is no, not really. It is not usually accepted anymore as pure grounds for divorce and while it is technically still a crime, the punishments are rarely enforced to the fullest extent of the law.

States That Enforce Provisions

Every state has a different set of divorce laws, which means some states are more likely to accept provisions laid out by a married couple than others. You should know which states are the most accepting of these provisions in advance of signing any prenuptial agreement.

The five states that are most known for enforcing these spousal support provisions are:

  • California
  • Illinois
  • New Jersey
  • Texas
  • Virginia

This means that whatever terms that you two agreed to when you formed the prenuptial agreement, it is more likely to stick in these states as long as it is considered fair and reasonable.

When Are Provisions Waived?

Of course, there is not always going to be a situation where the provisions that were previously laid out are going to be accepted in a courtroom. When it comes to these provisions, most courtrooms will review the agreement thoroughly and then determine if these provisions are fair to both parties or not. However, they are particularly reviewing if the provisions would cause hardship for somebody.

Let’s say there was only one spouse that was working throughout the marriage. But that spouse asked the other spouse, who does not work, to sign a prenuptial agreement. In this example, the first spouse asked the second spouse to waive their right to any spousal support in the event of a divorce.

The problem this creates is that the second spouse would barely have any savings of their own and may not have been working for the last dozen years. That would make it very difficult for the second spouse to land on their feet without some kind of spousal support. If there is overwhelming evidence of this being the case, a judge may rule to waive the provisions that were previously put in place. So, when you are creating spousal support provisions, you had better make sure that they are fair for both parties and that it does not create hardship for either party. Failure to do this can result in those provisions being thrown out.

Hire a Prenup Attorney

When it comes to prenuptial agreements and spousal support provisions, you need to have a professional prenup attorney on your side to go over every angle of the agreement with you. This can not only protect you from future legal trouble but also possibly add more to the agreement than what you already have.

Do you need legal counsel for your prenup? Schedule a free consultation with us today.

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