No Thanks, I’m Fine: Waiving Alimony In A Prenup?

 

Can you waive alimony through a Minnesota prenuptial agreement?

In many divorces, alimony and acrimony go hand in hand:  the biggest fights often revolve around how much, if any, money one spouse should pay to the other following the divorce.  Alimony, a.k.a. spousal maintenance, a.k.a. spousal support, is generally awarded at the discretion of the judge and is intended to provide support for a spouse who may have insufficient income to support himself or herself after the breakup of the marriage.  But if you’re already planning to execute a prenuptial agreement to protect your property and/or limit the amount of costly litigation that could ensue in case a divorce happens, can you use that agreement to avoid the alimony fight?  Can the agreement provide, for

Picture of Cash

example, that neither spouse will seek an award of alimony if there is a divorce? The answer, as often is the case in the law is…maybe.

Prenups…Do They Really Work?

As we talked about in an earlier post, prenuptial agreements are indeed enforceable in Minnesota, provided they are executed correctly.  Whether or not they can validly include a waiver of spousal support is a little less clear.

Previously, the general rule was that you couldn’t waive alimony through a prenuptial agreement.  Now, however, many states have enacted laws which specifically allow such waivers, though sometimes with limitations; for example, California will recognize a spousal support waiver, but only if the party waiving the support was represented by independent counsel at the time he or she signed the agreement and if the agreement is not “unconscionable.”

Unlike California, Minnesota has no specific prenuptial law dealing with the issue.  There is a law that allows spouses to agree to prohibit the court from modifying a spousal maintenance award.  This law is in the context of spouses who are already involved in a divorce proceeding and allows this type of agreement to avoid the uncertainty of future modifications to the maintenance award.  It’s not the same as waiving the right to receive spousal maintenance at all, in a prenuptial agreement and often does not come into play.

Minnesota does have at least one judicial decision, albeit from 1984, that recognizes that in certain circumstances, a waiver of spousal maintenance in a prenuptial agreement can be valid.  The catch is that at the time of divorce, the court is free to review the support provisions of the prenup to determine whether it would be “unconscionable” (there’s that word again!) to enforce them.  In other words, you won’t know until the divorce proceeding whether the provision is going to be enforced.  Further, the potentially costly amount of litigation that could revolve around determining whether the provision should be enforced might completely defeat the purpose of the waiver.

You can, however, make your chances of a waiver being enforceable as strong as possible by following a few guidelines when you sign the prenup.

  • If there is a vast disparity in wealth between the husband and wife, or if one spouse is planning to give up a career for the other spouse, you may want to consider limiting, rather than eliminating altogether, spousal maintenance.
  • Both parties are be represented by independent lawyers and should have the ramifications of the agreement carefully explained to them before signing. 
  • Don’t forget to comply with all of the technical requirements for the prenuptial agreement itself to be valid, as explained in our prior post.

There you go, a look at a very common question about prenuptial agreements (sometimes called antenuptial agreements).

Jason Kohlmeyer
Mankato, Minnesota

I’ve got  to stress that I just can’t answer every question I get.  Remember, I’m an practicing family law attorney in Minnesota, this means I can’t give you free advice over email, or tell you how to complete certain forms.  If you have a general question, post it here (anonymously)  and I’ll do my best to respond.  If you do need a family law lawyer, call my office and I would be happy to set up a consultation.

About Jason Kohlmeyer

With over 14 years experience in high conflict family law cases, numerous awards, and frequent lecturer through both Minnesota and the United States on family law issues, Jason has decided to help folks through a blog, answering some of the most common questions that people have during divorce and family law cases

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