5 Spousal Support

• Library: Premarital Agreements: Drafting and Negotiation (ABA) (2017 Ed.)

5 Spousal Support

§5.01 Overview

Historically, a premarital agreement determining property and support at divorce was void as against public policy. A premarital agreement that waived or limited spousal support was thought to promote divorce by permitting the husband to abuse the wife knowing his liability for support was limited by contract.¹ Currently, in the majority of states, parties may enter into a premarital contract that fixes or completely waives spousal support, subject to the court's power to refuse enforcement of the waiver under certain limited circumstances.

The law regarding general enforceability of postmarital agreement provisions fixing or waiving spousal support is less well-developed.

There is an important distinction between support for a former spouse and support for an existing spouse. In some states, the right to fix or waive support for a spouse is more limited than for a former spouse. Most frequently, the issue arises after a separation when a spouse seeks temporary support while he or she litigates the validity of the agreement or other issues in the case or while the parties await entry of a judgment of divorce.

Before a court will be required to reach the issue of enforceability of a waiver of post-divorce spousal support, it must first determine validity of the agreement as a whole. If the agreement is valid as a whole, the court may then separately consider whether to enforce or modify the spousal support provisions. An unenforceable spousal support waiver will generally be severable so that the remainder of the agreement can still be enforced as written.²

A party may seek to enforce or void a spousal support provision of a premarital or postmarital agreement in a state other than the state whose law the agreement provides will govern the dispute. The Uniform Premarital Agreement Act (UPAA), the Uniform Premarital and Marital Agreements Act (UPMAA), and general choice-of-law jurisprudence allow parties to select the law that will govern their agreement.³ However, the law and public policy of the forum state may override the parties' contractual choice of law and permit the court to impose a support obligation different from that to which the parties agreed.

This chapter is concerned with general enforceability of provisions limiting court authority to award support in accordance with applicable law. Options for terms providing support and issues about drafting waivers are discussed in Chapter 12.

§5.02 Enforceability of premarital agreement Provisions Fixing or Waiving Post-Divorce Spousal Support

(a) Minority Position: No Premarital Waiver Permitted

In a minority of states, parties may not fix or waive spousal support in a premarital agreement.⁴ Among the UPAA states, only Iowa, New Mexico, and South Dakota law preclude a premarital support waiver.⁵ As a result, in these states parties to a premarital agreement are in the same position with respect to the spousal support claim of a dependent spouse at divorce as in the absence of a premarital agreement. Among the non-UPAA states, only Mississippi law appears to make a premarital support waiver not binding on the court at divorce.⁶

(b) Majority Position: Premarital Agreement Fixing or Waiving Post-Divorce Spousal Support Generally Enforceable

The modern view, adopted by a majority of states, gives parties virtually a free hand to agree to any support obligation they wish, including a complete waiver, subject to court authority to override the waiver only if unconscionable at divorce. This position is represented by the UPAA, the UPMAA, and the majority of non-Uniform Act states.⁷ The UPAA permits parties to completely waive spousal support as well as to fix spousal support at a level far below what the dependent spouse could receive from a court in the absence of agreement, leaving only the narrowest opportunity for a court to override the waiver.⁸ Twenty-four of the 26 jurisdictions that have enacted the UPAA have included the provisions permitting parties to contract to fix or waive spousal support as well as both of the states (Colorado and North Dakota) that have enacted the UPMAA.

§5.03 Enforceability of postmarital agreement Term Fixing or Waiving Spousal Support

As discussed in Chapter 3, several states have statutes expressly permitting spouses to execute a postmarital agreement as comprehensive as a premarital agreement, including disposition of property at death or divorce as well as fixing or waiving spousal support at divorce.⁹ In Colorado and North Dakota, the UPMAA allows for a postmarital agreement to fix or waive spousal support.¹⁰ In these states, spouses may contract regarding spousal support under the same rules that govern spousal support in a premarital agreement. Similarly, in those states where parties to a premarital agreement are not permitted to bind a future divorce court regarding spousal support,¹¹ a postmarital agreement not incident to separation may not be binding as to spousal support in a future divorce proceeding, but there is little guidance at present.

North Carolina, which permits parties to a premarital agreement to waive spousal support, has a statute that appears to preclude such a waiver in a postmarital agreement not incident to separation.¹²

Case law in Alabama, Florida, Pennsylvania, Tennessee, and Georgia indicates their courts will permit a postmarital agreement not incident to an immediate separation to predetermine spousal support conclusively in the event of a future divorce proceeding.¹³ However, the status of a postmarital support waiver in these states is not yet clear. Adams v. Adams,¹⁴ a Pennsylvania case, for example, involved a comprehensive separation agreement, not a postmarital agreement, but the Pennsylvania court applied the same validity criteria as it applies to premarital agreements and the language of the opinion was expansive enough to suggest that all three types of agreement would be treated the same way. Similarly, in Tibbs v. Anderson,¹⁵ the Alabama court looked to premarital agreement cases for standards by which to judge validity, including cases that expressly permit premarital support waivers. However, the question of a support waiver at divorce was not before the court. In Hoyt v. Hoyt,¹⁶ the issue was enforceability of a reconciliation agreement providing for disposition of property and alimony in the event the reconciliation proved unsuccessful. The Tennessee court upheld the agreement, including the provisions regarding spousal support, but the gap between the execution of the agreement and the filing of a divorce action was less than a year.

In Casto v. Casto,¹⁷ the Florida court said: "Postnuptial agreements regarding alimony and marital property are properly enforceable in dissolution proceedings."¹⁸ The Casto court described the agreement at issue there variously as a postnuptial agreement and a separation agreement. The agreement was executed a year before suit for divorce was filed but the parties were separated at the time. In subsequent cases,¹⁹ Florida courts have distinguished litigation settlement agreements from what they characterized as the postnuptial agreement in Casto. In doing so, they reaffirmed that the validity requirements for premarital and postmarital agreements are the same in Florida without distinguishing between a postmarital agreement executed during an ongoing marriage and one executed incident to separation.²⁰ The Casto line of cases suggests Florida courts would give effect to a postmarital agreement made by parties to an ongoing marriage and not incident to a planned separation. However, none of the reported Florida cases actually involved such an agreement.

In the majority of states, there is not yet a significant body of case law regarding enforceability of a postmarital support waiver not incident to immediate separation or divorce or the circumstances under which a court may refuse to enforce such a waiver. Guidance may be found in the body of law regarding enforceability of premarital support waivers. Courts are likely to look there when confronted with a postmarital agreement waiving support. Indeed, the most significant feature of both types of agreements, insofar as they incorporate spousal support waivers, is that such a waiver may precede a divorce filing by many years during which circumstances may have changed in unanticipated ways. By contrast, a separation agreement is generally made at a time when relevant circumstances are known. Thus, premarital agreement case law is the more relevant guide to assess the risk that such a waiver will not hold up in the event of a divorce.

In some states courts have authority to modify alimony provisions of a separation agreement without a finding of unconscionability. A court in these states may well decide to treat such a provision in a premarital or postmarital agreement in a manner similar to the treatment it would receive in a separation agreement in that state. Thus, a postmarital agreement provision waiving or otherwise limiting a spouse's support rights at divorce may be deemed modifiable in the event of changed circumstances or otherwise in accordance with the principles that would govern modifiability of support provisions of a separation agreement.²¹ Until clear authority emerges, the viability of postmarital agreement support waivers in these states will be uncertain.

§5.04 Circumstances Under Which Court May refuse Enforcement of Post-Divorce spousal support waiver in otherwise valid agreement

Even in the majority of states that permit parties to fix or waive post-divorce in a premarital or postmarital agreement, courts are authorized to refuse enforcement under some circumstances:

• Under the UPAA, a court may refuse enforcement if the waiver would make the claimant eligible for public assistance.²² The same standard applies under North Dakota's version of the UPMAA.²³
• Some UPAA states have changed the criteria for determining when a court may override

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