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. The Generosity Clause
You still aren’t stuck with only picking one option from the list above. You can combine attributes from various options and tailor them to your needs.
In addition, you can add a “generosity clause,” which allows you to give more resources to your partner than the minimum specified in the prenup or postnup. This minimum amount reflects what you are willing to give if you divorce acrimoniously under the worst possible circumstances. That minimum is the amount you’re legally bound to provide through the execution of the prenup.
In contrast, the generosity clause can be invoked if you part amicably. It allows you to provide more for each other at the time of divorce (depending on your future situation). The generosity clause is designed to demonstrate the couple’s good-faith commitment to relationship. Such givingunder the generosity clause will not legally bind you to a more benevolent standard.
The specifics of a generosity clause can vary widely depending on the couple’s mutual agreements and goals. Again, at JustPrenups, our goal is to tailor the language to the best outcome for you.
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.
If you aren’t sure what’s best for both of you, some aspects of this overview of spousal maintenance may seem overwhelming. We can help you to itemize concerns and to figure out the best approach. Talk with us to decide on the best way of managing the terms for your agreement.
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Warning: All posts on this website contain general information about legal matters for broad educational purposes only. This information is not legal advice and should not be treated as such. This blog post does not create any attorney-client or mediator-client relationship between the reader and JustPrenups.com.