Alimony waivers in ante nuptial agreements

Alimony, or spousal support, is money paid by one spouse to another when a couple gets divorced. The general purpose of alimony is to help a spouse meet his or her needs after the marriage ends. In Massachusetts, either party to a divorce has the option to waive the right to receive alimony. When a couple’s ante nuptial agreement contains an alimony waiver, there are certain factors a court must consider in deciding whether the agreement is valid.

If you are going through a divorce, consider speaking with an attorney who has experience in family law. Alimony laws can be difficult to understand. An attorney can look at your individual circumstances and help you decide whether waiving alimony is right for you.

Under Massachusetts’s law, alimony can be waived by a prenuptial, or ante nuptial, agreement. An ante nuptial agreement is an agreement that a couple enters into prior to getting married. Courts scrutinize alimony waiver clauses in such agreements very closely. Essentially, in order for an alimony waiver clause to be enforceable, the court must find that:

  1. The agreement was valid at the time it is executed; and
  2. The agreement was fair and reasonable at the time of the parties’ divorce.

In deciding whether an agreement is fair and reasonable, courts consider a number of factors. These factors include the age, intelligence, literacy level, earning capacity, and financial circumstances of each spouse. Courts will generally accept waivers of alimony unless one spouse will be left without enough property, income, or employment to support him or herself.

In addition, courts consider whether the spouse waived alimony knowingly and voluntarily. If there is evidence to suggest that a spouse was coerced into waiving alimony or was deceived by fraud or some misrepresentation on the part of the other spouse, a court probably will not find the waiver to be enforceable. For example, if a husband failed to fully disclose all of his assets and the wife subsequently agreed to waive her right to alimony, a court may find that the agreement was not valid. The rationale is that the wife may not have agreed to forego receiving alimony if she knew about those assets.

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