Alimony is not a one-size-fits-all deal in prenuptial agreements or in postnups. Your prenup can provide for customized alimony, otherwise known as spousal support, that is as unique as your circumstances.

Chapter 61 of the Florida Statutes covers prenuptial agreements and allows the parties to draft with respect to the “establishment, modification, waiver, or elimination of spousal support” (Fla. Stat. § 61.079).

While some prenups (and postnups) waive alimony completely, other couples choose other options that are available. Let’s review some couples’ approaches to alimony in martial contracts:

1. Waiver of Alimony

If the couple agrees that neither party should receive spousal sup[port, they can draft the prenup to waive alimony.

2. Limited Alimony

There is no “prefab” version of alimony. Your prenup may limit the amount and/or the duration of alimony. This method sets a “ceiling” for spousal support in identifying the most either spouse with either pay to the other, or it can set a “floor.”

3. Incentivized Alimony

The prenup can also provide an incentive for the higher-earning spouse to pay alimony by offering some benefit to the paying spouse. For example, the prenup could provide that if the higher-earning spouse pays alimony for a certain period of time, the lower-earning spouse will waive some other right or benefit.

4. Triggering Events for Alimony

The prenup can also specify certain triggering events that would require the payment of alimony, such as the birth of a child or a specific length of the marriage. This can help ensure that alimony is only awarded in specific circumstances.

5. Deductibility of Alimony

Alimony is not taxed. According to the IRS,  alimony is not deductible for the person paying it and not taxed for the person receiving it (for divorces finalized after January 1, 2019). For information directly from the horse's mouth, here is the IRS site.

6. Replacement Alimony

Are you currently receiving alimony? Scared your next marriage may not last...and you lost your alimony for nothing? Don't fear as long as your prenup (or postnup) includes replacement alimony. We can help with creating terms that best suit your lifestyle and goals.

But beware of a statutory limitation…

The prenup statute mentions this aspect of spousal support:

If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility. (Fla. Stat. § 61.079).

A Florida court will not honor a prenup’s clauses regarding alimony if the spouse who waived alimony becomes a dependent of the state. If you believe this situation may occur in the future, now is the time to allocation resources and to partition assets so that the prenup’s goals remain achievable and so that both spouses can resume their lives comfortably after divorce.

Some aspects of this overview of spousal maintenance may seem overwhelming. You're not alone. We can help you to itemize concerns and to figure out the best approach, including our mediated prenup service. Talk with us to decide on the best way of managing the terms for your agreement.

A reminder: your prenup or postnuptial agreement may address alimony, but by law, it may not address child custody or child support. Learn more here about child support and child custody law.

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