Prenups: Can you limit claims for spousal maintenance?
by Jeremy D. Morley
Uniform Premarital Agreement Act authorizes agreements regarding “the modification or elimination of spousal support” and “any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.”
Such waivers were prohibited at common law, but one calculation is that in 43 jurisdictions spousal maintenance waivers are not void per se.
But: a) Waivers of alimony will never be enforced if it would render the spouse a public charge and b) Waivers of temporary spousal support, i.e. for the period between commencement of a case and divorce judgment may be ineffective (and perhaps might jeopardize the entire agreement). Belcher, 271 So.2d 7 (Fla.1972): agreement contained a blanket waiver of “any and all” claims by W against H. W filed a suit for alimony unconnected with a divorce. Court rejected H's claim that prenup barred her claim for alimony and counsel fees. Court held that the duty of support includes the obligation to pay alimony and counsel fees for “so long as she has the legal status of wife” but permanent alimony after divorce “is another matter.”
New Mexico: Section 40-3A-4(B) provides that “[a] premarital agreement may not adversely affect the right of a child or spouse to support.” Rivera v. Rivera, 149 N.M. 66, 243 P.3d 1148 (N.M.App.,2010) – There was no disclosure of assets and the agreement contained a complete waiver of spousal support in violation of the New Mexico statute. Therefore the agreement was contrary to the public policy expressed in Section 40-3A-4(B) and was therefore unconscionable.
New York: Spousal maintenance terms must be “fair and reasonable at the time of the making of the agreement and ... not unconscionable at the time of entry of final judgment” and a provision that waives or reduces support must not render a spouse “incapable of self-support and therefore is likely to become a public charge.” Domestic Relations Law Sec & General Obligations Law Sec. 5-311.
In one case in which the New York court upheld the very one-sided provisions of a prenuptial agreement that gave very little to W in the way of asset division, the court used the statutory maintenance provisions to provide some relief to W. The children had been raised in luxurious accommodations, had attended school in an affluent community where real estate values had risen sharply since the date of agreement was entered 13 years, W had meagre resources and had been out of the work force for more than ten years, while H had assets of over $30 million & earned $4 million per year. Accordingly court modified a cap on housing expense for W from $200,000 amount to $2 million. Cron v. Cron, 8 A.D.3d 186, 780 N.Y.S.2d 121 (1st Dept.2004).
Such waivers were prohibited at common law, but one calculation is that in 43 jurisdictions spousal maintenance waivers are not void per se.
But: a) Waivers of alimony will never be enforced if it would render the spouse a public charge and b) Waivers of temporary spousal support, i.e. for the period between commencement of a case and divorce judgment may be ineffective (and perhaps might jeopardize the entire agreement). Belcher, 271 So.2d 7 (Fla.1972): agreement contained a blanket waiver of “any and all” claims by W against H. W filed a suit for alimony unconnected with a divorce. Court rejected H's claim that prenup barred her claim for alimony and counsel fees. Court held that the duty of support includes the obligation to pay alimony and counsel fees for “so long as she has the legal status of wife” but permanent alimony after divorce “is another matter.”
New Mexico: Section 40-3A-4(B) provides that “[a] premarital agreement may not adversely affect the right of a child or spouse to support.” Rivera v. Rivera, 149 N.M. 66, 243 P.3d 1148 (N.M.App.,2010) – There was no disclosure of assets and the agreement contained a complete waiver of spousal support in violation of the New Mexico statute. Therefore the agreement was contrary to the public policy expressed in Section 40-3A-4(B) and was therefore unconscionable.
New York: Spousal maintenance terms must be “fair and reasonable at the time of the making of the agreement and ... not unconscionable at the time of entry of final judgment” and a provision that waives or reduces support must not render a spouse “incapable of self-support and therefore is likely to become a public charge.” Domestic Relations Law Sec & General Obligations Law Sec. 5-311.
In one case in which the New York court upheld the very one-sided provisions of a prenuptial agreement that gave very little to W in the way of asset division, the court used the statutory maintenance provisions to provide some relief to W. The children had been raised in luxurious accommodations, had attended school in an affluent community where real estate values had risen sharply since the date of agreement was entered 13 years, W had meagre resources and had been out of the work force for more than ten years, while H had assets of over $30 million & earned $4 million per year. Accordingly court modified a cap on housing expense for W from $200,000 amount to $2 million. Cron v. Cron, 8 A.D.3d 186, 780 N.Y.S.2d 121 (1st Dept.2004).
