Navigating Spousal Support in Premarital Agreements: Options and Considerations

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Premarital agreements (prenups) are essential tools for couples who want to establish financial expectations before marriage. One critical component often addressed in these agreements is spousal support.

1. No Mention of Spousal Support

If a premarital agreement does not address spousal support, California's spousal support laws at the time of divorce will apply. Currently, these laws are outlined in Family Code 4320, which considers factors such as earning capacity, the standard of living during the marriage, and the duration of the marriage.

2. Preserving Current Spousal Support Law

Some couples prefer to adhere to the existing spousal support laws in California by explicitly stating this in their premarital agreement. This approach provides certainty, especially if they might move to a state with different spousal support laws or if California's laws change in the future.

3. Waiver of Spousal Support

Couples can choose to waive their right to request spousal support entirely. This waiver can be absolute or conditional, allowing for support only under specified circumstances, such as disability or caring for minor children.

4. Specifying the Amount

To ensure clarity and predictability, some couples specify the exact amount of spousal support in their premarital agreement. Options include:

  • A fixed dollar amount

  • A gradually reducing amount over time, incentivizing the supported spouse to increase their income

  • A formula-based calculation

  • A lump sum payment

  • A large cash gift included in the agreement

5. Determining the Duration

Couples may set a specific duration for spousal support, such as:

  • A fixed number of months or years

  • A period based on the length of the marriage (e.g., support for half the length of the marriage)

  • An event-triggered duration

6. Modifiability of Spousal Support

Flexibility can be built into the premarital agreement by allowing modifications to the spousal support amount or duration. Couples might specify conditions under which modifications are permitted, such as changes only in certain circumstances (e.g., disability) or in one direction (upward or downward).

7. Sunset Provisions

Sunset provisions can eliminate or modify spousal support terms after a specified period of marriage. For example, a waiver of spousal support might expire after a certain number of years, or be replaced by a different provision.

Understanding and carefully considering spousal support options in premarital agreements can help couples create fair and reasonable arrangements that align with their expectations and future plans. Each couple's situation is unique, and consulting with a family law specialist can provide tailored advice to ensure that your prenup reflects your financial intentions and protects your interests.