Alimony and Prenuptial Agreements

One of the most typical reasons that couples want to get a prenup done before marriage has to do with everyone’s fear of Alimony.  Alimony is money that one spouse pays to another spouse during or after a divorce to maintain the lower earning spouse’s standard of living.

Many people who come to me with a concern about alimony have experienced the effects of it first hand.  An example is someone who’s been married before and had to pay or is still currently paying alimony to their former spouse.  Parties in those situations are looking for a prenup so that they will be protected against having to pay alimony if they divorced.

In order to understand what the different options are for alimony in a prenup, we must first understand how alimony works in the Commonwealth of Massachusetts absent a prenuptial agreement.

Prior to March 1, 2012, alimony in Massachusetts was a mess.  There were no clear guidelines and in many situations, people would be paying alimony on a short term marriage for longer than they were ever married.  This seemed unfair to many people so the legislature went about to change the law so that there was more predictability to how and when alimony was awarded.  Post March 1, 2012, lawyers and judges now have a formula to guide them in how to calculate alimony and it is generally broken up in Duration and Amount.

The Amount of alimony is basically 30-30% of the difference in the couple’s income.  So you simply take the higher earning spouse’s income and subtract the lower earning spouse’s income and then take 30-35% of it.  That is the alimony amount.

The possible Duration of alimony depends on the length of the marriage.  It is a gradual step up.  This means that the longer you’ve been married, the longer your possible obligation to pay alimony would be.  For marriages lasting less than 5 years, the duration of alimony could be 50% of the length of the marriage.  For marriages lasting between 5 years and less than 10, the duration of alimony could be 60% of the length of the marriage.  For marriages lasting between 10 years and less than 15 years, the duration of alimony could be 70% of the length of the marriage.  For marriages lasting between 15 years and less than 20 years, the duration of alimony could be 80% of the length of the marriage.  And for marriages over 20 years, the duration of alimony could be lifetime.

Now that you understand how alimony in Massachusetts works absent a prenuptial agreement, you can have several options in a prenup:

  1. You can ignore it and not reference anything in regards to alimony
  2. You can waive alimony
  3. You can adopt the current alimony scheme
  4. You can make up your own

If you choose to ignore any mention of alimony, then if you were to get divorced, the currently alimony laws in whatever place you divorce will govern how alimony is paid.

If you choose to waive alimony, it has to be fair and reasonable not only at the time of the execution of the prenup but also at the time you need to use the prenup.  If the inequities between the parties is so great at the time of divorce, a judge could invalidate the waiver of alimony provision.

If you choose to adopt the current alimony scheme, you will “lock in” the law as it stands now.  Regardless of any change in the law in the future or if you move and get divorced somewhere else, the current alimony formula will always be the governing law.

Lastly, if you choose to adopt your own alimony formula, you simply have to make sure that it creates a fair and reasonable outcome.

For more information about alimony and how it works in prenups, contact us.

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