Understanding When Not to Waive Alimony in a Prenuptial Agreement

Many couples sign prenuptial agreements to protect an inheritance. Some have received gifts of money that they want to protect. Others may be expecting a large sum of money in the future. Often, the couple’s parents have suggested that they use a prenuptial agreement. After all, the family does not want to see its money divided in the event of a divorce. Families prefer that their assets remain in their line, passed down from children to grandchildren, rather than being given to a former spouse.

When it comes to alimony in a prenuptial agreement, many people want to waive alimony, meaning that neither spouse can receive alimony from the other. For example, if one spouse receives income from their inherited property, paying alimony will impact that income. Therefore, people who are living off of their family property will often want to waive alimony.

But remember, you can’t leave your spouse penniless in a divorce. That’s not the purpose of a prenuptial agreement. The agreement must be fair. Plus, you want the agreement to have teeth so that it can be enforced if it needs to be used. Leaving your ex-spouse penniless is not fair and makes the agreement open to challenge. If you divide your inherited property and waive alimony, you’ll need to make sure your spouse is supported by his or her property or other assets you give him or her as part of a divorce.

Many couples begin discussing a prenuptial agreement simply to protect their inheritance and end up caught in the twists and turns of planning a divorce. They are surprised to learn that there are many different scenarios to consider when drafting the agreement, such as each party’s earning potential, their likely career paths, and custody of unborn children. The couple who wants to get married and plan their wedding day now finds themselves in the middle of planning their divorce and wondering who will pick up Junior from school every day. The stress of the impending wedding and negotiating the prenuptial agreement can push couples to their breaking point.

However, if you are only interested in protecting your inheritance, consider whether you should bring alimony back on the table. Not waiving alimony takes the pressure off because you don’t have to consider every scenario in the event of a divorce. In the event of a divorce, either party can ask the other for alimony, reducing the risk that one party will be left penniless. Plus, you will have protected your inherited assets by dividing them into separate properties.

It may not be in your best interest to waive alimony, even if you are the party requesting the prenuptial agreement. Consider a young woman whose parents want her to sign a prenuptial agreement to protect the inheritance they will leave her one day. They have not given her any money and her income is modest. Suppose she waives alimony in her prenuptial agreement and later stops working to stay home. In this 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 this situation, it is possible that the prenuptial agreement could be challenged as abusive in light of her current situation. However, she might be better protected by not waiving alimony in the contract. In this case, she would have been better off without a prenuptial agreement.

Planning a prenuptial agreement is a very complex process that requires careful consideration. There is no one-size-fits-all solution and, unfortunately, there is no crystal ball to predict the future. If your primary concern is protecting your inherited assets, it is essential to explore all options, including the decision of whether or not to waive alimony.