Spousal Maintenance in New York Prenuptial Agreements

The topic of prenuptial agreements can be quite loaded and elicits strong feelings on both sides of the issue. As a wise old soul once said, ‘that’s why they make chocolate and vanilla.” Prenups aren’t to everyone’s taste. But maybe that’s because people don’t know enough about them and what they actually do.

When New York couples divorce without a prenup in place, they are subject to the laws and guidelines of state law and a judge’s interpretation of them. This is the path toward divorce most  New Yorkers took in the past.  It’s more of  a one-size-fits-all option with not a lot of flavors to choose from. 

Increasingly, more New Yorkers are choosing to get prenuptial agreements. These people tend to be more outside of the box thinkers who want to define the terms of any future divorce and not have the terms dictated to them by the state or a judge. To continue with the flavor analogy, they don’t want a chocolate or vanilla divorce, rather they want to craft a prenup that allows for pistachio or rum raisin. 

A prenuptial agreement is a contract signed by future spouses before they are married. Typically, they address how property will be divided in case of divorce. They can also cover the issue of  spousal support to  be paid after the marriage. Specifically, a prenup can state if spousal support will be paid and if so, how long and under what conditions. 

Spousal Support in New York Without a Prenup 

Spousal maintenance, which used to be called alimony in New York, refers to the money one spouse pays to the other after a divorce has occurred. This maintenance is typically paid for a specific period of time. 

If there is no prenup in place, courts will consider several factors when determining how much maintenance will be paid and for how long. The factors can include:

• How long the couple was married
• Each spouse’s income, property holdings, and their share of the  marital property as divided by the court
• Their respective ages and health status
• Their earning capacity at the time of divorce and in the future

If the couple can’t come to an agreement, they could be in for a protracted and very public legal slog.  This is not an optimal outcome. 

Understandably, couples don’t like to think about this possibility before they get married. But it’s such a smart move to get ahead of any potential conflict. With a prenup, an expensive legal battle with emotions running high on both sides could be avoided. 

New York Spousal Support With a Prenup 

Prenuptial agreements give couples the ability to make a variety of provisions for spousal support that work best for them. Some possible scenarios are: 

• The future spouses agree to totally waive the right to spousal support
• Set out the right for one spouse to receive a specific amount of maintenance upon divorce—say, a lump sum payment of $100,000
• Allow for a spouse who isn’t working at the time of divorce to receive a set amount of maintenance but agree to waive support if both spouses are employed 
• Lay out a schedule for how much maintenance is to be paid, specify the payment form, and the date or time table it is to be paid on

An experienced New York family lawyer will be able to advise you on possible provisions to consider.

Examples of Maintenance Provisions

Every New York couple is different and your prenuptial agreement can reflect your unique circumstances. That being said, many maintenance provisions contain a variation of the following terms:

• If the couple divorces after they have been married 5 years, maintenance will be paid monthly to a spouse for three years.
• A payment of $5000 will be made for each full year the couple was married but only if the spouse receiving payment is unemployed at the time of divorce. 
• Either spouse can ask for maintenance in an amount not greater than their most recent salary, if that spouse isn’t working at the time of divorce.

It’s important to remember that a judge can override the prenup if they feel it’s unfair to either party. 

Conditions on Maintenance

The prenuptial agreement can also set out conditions that will terminate payments before the scheduled payment period has elapsed. For example, the prenup can state that maintenance can be terminated if either of the parties dies or if the spouse that is receiving the payments gets remarried or lives with someone for a period of 6 months or more.

Some couples also choose to include something called a sunset clause in their prenups.

This provision says the prenup will no longer be enforceable after the couple have been married for a certain amount of time. So if the sunset clause applies after 10 years and the couple gets divorced after 20 years, their property will be divided under New York law and not the prenup. 

You’ve found your forever person and want to get married and that is fantastic. Hopefully you will have a long and happy life together. But, just in case, it’s smart to lay out the ground rules for what will happen in case things don’t work out. It could save you vast sums of money and a world of psychic energy.