Alimony, or spousal support, is money designed to provide for the lesser earning spouse during and after the divorce. However, alimony isn’t required and it can sometimes be waived. It may be difficult to know if this is or isn’t in your best interests.
Here’s what you should know Utah alimony waivers and how to get the legal help you need when faced with the end of your marriage.
What Is an Alimony Waiver?
An alimony waiver is a formal document that states that you and/or your ex-spouse agree that the court will not award alimony, support, or spousal maintenance when the final divorce decree is issued.
You can also waive alimony in your final divorce decree if you haven’t already done so with a prenuptial or postnuptial agreement. Simply inform your attorney that you are not interested in receiving support and they will ensure the correct language is built into your divorce decree.
If your spouse has historically been the primary wage earner or primary source of financial support for the family, it is typical for that arrangement to continue after the divorce with an award of alimony to you, as the non-working or lesser earning spouse. However, what happens when you and your spouse have similar levels of income, or if neither of you work? In that case, there may be an alimony waiver, or an award of “one dollar a year” of alimony.
If you waive alimony at the time of your divorce, you are also waiving any claim for past or future alimony. There are different reasons why you may consider waiving alimony:
• You are the primary wage earner in your family
• You have not historically relied on your spouse for financial support
• You and your spouse were married for a very short period of time
• You and your spouse have similar levels of income
• You are confident in your ability to support yourself in the future
There is no requirement that an alimony waiver be mutual. Alimony can be waived by one party and not by the other. If you decide to waive alimony, at your divorce the Judge will ask you questions specifically about that alimony waiver, in order to determine that you understand what it means to waive your right to support and to verify that you can care for yourself financially.
What happens if you are comfortable waiving alimony at the time of your divorce, but do not want to preclude your right to ask for an award of alimony in the future? The answer may be that your spouse pays you “one dollar a year” in alimony for a certain period of time (the alimony term). The $1 is symbolic. It really means that no alimony will be paid to you for the time being, but it leaves the door open for you to ask for a modification of the alimony amount in the future. Leaving alimony open with an award of “one dollar a year” may be appropriate if:
• You are currently working but your future employment is uncertain
• There is a possibility that your spouse will return to the workforce or make significantly more money in the future
• There are health concerns that prevent you from knowing if you will be able to support yourself in the future
• You have been married for many years and you and/or your spouse are of advanced age
When Can Spousal Support be Waived?
Under Utah law, spousal support can be waived by a person prior to the marriage in a prenuptial agreement. However, there are specific requirements that must be met in order for an individual to waive or provide provisions to their right to alimony. The future spouse must have independent legal counsel at the time of signing the prenuptial agreement and the terms must be conscionable at the time of signing. If these requirements are met, spouses are allowed to determine support before the wedding.
Considerations Before Waiving Support
There are many considerations that must be made before deciding whether to request or acquiesce to a waiver of spousal support. One consideration is whether a spouse earns enough in a current job to be able to waive support and still maintain financial independence. Another is of personal beliefs, where an individual must consider if they are comfortable with the idea of receiving monetary support from a former spouse. Some people find the concept embarrassing or counter to the ideas of feminism. Finally, you must consider whether alimony can make up for any economic loss incurred as a result of the marriage, either by limiting job options or for the loss of career by leaving the workforce while the marriage is ongoing.
Alternatives to a Blanket Alimony Waiver
A couple may also want to consider alternatives to a blanket alimony waiver in a Utah prenuptial agreement. Provisions can be made in the contract that limit the amount or duration of spousal support that the court might not find unconscionable compared to a blanket waiver of support. For example, a couple might agree to alimony payments for one half of the duration of the marriage, or the prenuptial agreement might provide that alimony payments are only made to a certain monetary amount.
Another alternative to a blanket waiver is to include spousal support as an incentive for the marriage or if a triggering event occurs. For example, a spouse will waive alimony unless the marriage lasts for a certain length of time, or spousal support will trigger if a spouse reaches a certain age, incurs a disability, or a situation arises which renders the spouse unable to rejoin the workforce after the marriage.
Can You Waive Alimony in a Prenuptial Agreement?
You are getting married, you know you want a prenup, but you do not want to have to pay alimony in the event of a divorce. Can you waive alimony in a prenuptial agreement? The answer is yes. You can waive alimony in a prenuptial agreement; however, it must be done with the significant caveats and disclosures and there is never a 100% guarantee. The other party must be represented by an attorney, or a very solid waiver (which is still a risk).
However, if the waiver of alimony would leave the spouse needing government assistance, the court can and will set aside the waiver of alimony. At the end of the day, there is no guarantee and it will ultimately be up to the judge to decide whether the waiver is enforceable.
Facts and actions that occur during the marriage can also come in to play.
If your prenuptial agreement waives alimony, then a court will be forced to honor this provisions – even if your circumstances at divorce are much different than they were when you signed the prenuptial agreement. However, a court will not uphold a prenuptial agreement that waives alimony if you or your spouse will not be able to make ends meet without it. This is because public policy disfavors agreements that will make individuals wards of the state (like by relying on Medicare/food stamps).
The best bet is to include a formula for when and how much alimony should be paid. This can be based upon the differences in incomes, length of the marriage, or any other factor you want to include, such as no alimony if the other spouse commits adultery. Allowing for some form alimony versus a complete waiver is just a safer route to go. At the end of the day, a prenuptial agreement is a contract and you can agree to anything so long as you meet the legal requirements for a valid prenup, and the terms do not violate public policy or the contract contains terms that are illegal. But again, and I cannot reiterate this enough, if the prenuptial agreement is contested, it will be up to the Judge to decide and everything is fair game at that point.
Am I Eligible to Get Alimony Waiver?
Alimony is there to help prevent any unfair financial effects as a result of a divorce. For example, if you have been a stay-at-home parent for many years and find yourself in need of an income after a divorce. In this case, you could benefit from alimony to help support you.
Why You May Waive Alimony
There are many reasons why you may decide to waive alimony, however, here are some of the most common reasons:
• You have never relied on your spouse for financial support
• You are the main earner in your household
• You have not been married for very long
• You and your spouse earn similar wages
• You are confident you will be able to support yourself
What Happens When You Waive Alimony?
When you decide to waive alimony, it is a permanent agreement that you cannot modify in the future. So, what happens when you feel confident in being able to support yourself at the time of the divorce but do not want to waive your rights to alimony in the future? In this case, you may want to consider entering an agreement for your spouse to pay you “one dollar a year” in support. As a result of this, it will leave room for you to ask for a rise in alimony in the future if you feel that you need it.
The Danger of Waiving Your Right to Modify Spousal Support
In divorce cases involving spousal support, your spouse or his or her attorney may ask you to waive your right to modify spousal support in the future. Some lawyers call this a “Staple waiver”. Such waivers are extremely dangerous, however, and they should not be entered into without first consulting with qualified legal counsel.
If you do not waive your right to modify spousal support, a court will have the authority to modify the spousal support award in the future. This right to modify is important because if you lose your job, become injured or ill, or experience any other misfortune that reduces your income, you can always go back to the court and ask the judge to reduce or even eliminate your spousal support obligation. However, if you have waived your right to modify, and at some time in the future you experience a reduction in income for whatever reason, your former spouse can force you to continue paying spousal support, and your former spouse can even request that the court put you in jail for not paying spousal support no matter how good your reason is for not paying. Thus, your right to modify the spousal support award is extremely important because, as we all know, none of us has absolute control over our future nor can we know exactly what the future holds for us.
If you have already waived your right to modify a spousal support award, there may still be hope. If there was no discussion in court regarding the modifiability of the spousal support award or no indication that anyone explained to you the effect of waiving your right to modify the award, then your waiver may be invalid, and you may be able to have it set aside. Or, if your Judgment of Divorce does not specifically declare that you were forgoing your right to modify the spousal support award or does not state that the spousal support award is final, binding and nonmodifiable, you may also be able to have your waiver set aside.
Only a qualified family law attorney can tell you whether a Staple waiver is right for you or if you have validly waived your right to request the court to modify a spousal support award.
In Utah, you can waive your right to alimony in a number of ways:
Post-Nuptial Agreement or Settlement Agreement
Similar to a prenuptial agreement, you and your spouse may enter into an agreement after you are married (a postnuptial agreement) or at the time of your divorce (marital settlement agreement) that deals with issues of property/asset division, debt distribution and spousal support. You can also waive your right to spousal support in these types of agreements. And, like prenuptial agreements, the court will be obligated to uphold your waiver of spousal support unless doing so would force you to become a ward of the state.
It is important to note that while you can affirmatively waive your right to spousal support in pre and post-marriage contracts, you can also include provisions that permit you to seek or modify an alimony award at a later date. In fact, this is the only way to possibly obtain spousal support after you have waived your right to do so by contract. For this reason, you should always include terms that allow you to petition for alimony in the future – no one knows what can happen in the future.
Failure To Request Alimony
Finally, it is possible to waive alimony by failing to request it. If you do not enter into a pre or post-marital contract with your spouse, then odds are good your divorce case will be litigated. At the very least, you or your spouse will petition the court for a divorce and the other spouse will have an opportunity to answer the petition. If you fail to request an award of spousal support in your petition, answer or at an appropriate time during the litigation of your divorce case, then you will likely waive your right to alimony. Once the final divorce decree has been issued by the court, it will be extraordinarily difficult to ask for support later. For this reason, you should always ask the court for alimony or at least the right to request it in the future during your divorce.
As you can see, there are a number of ways to waive your right to alimony in Utah. You can also tell that once you have waived your right, it is highly unlikely that you will be able to receive spousal support in the future. For this reason, you should always consult with a qualified divorce or family law attorney before deciding to waive alimony or when entering into pre and post-marital contracts.
You need to carefully weigh your options and the ramifications of giving up your right to alimony. If you give up your right to alimony, you have not only lost the money you could have earned during the marriage, but you also give up the right to maintain the lifestyle you were afforded during the marriage itself.
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West Jordan, Utah
84088 United States
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