ABA Family Legal Guide

Family Law

Money Matters During Marriage

Premarital Agreements

Do premarital agreements need to provide for a certain amount of support?

No, the law does not set a specific amount. In some cases, though rare, a court may decide that an agreement is enforceable even if it leaves one spouse with no property and no support from the other party. In determining whether a premarital agreement is enforceable as drafted, courts will examine circumstances that may have changed since the time of the marriage--such as the birth of a child, a career given up, or an unforeseen illness.

Some states will enforce an agreement to provide no spousal support, so long as waiver of support does not leave the less-wealthy party so poor that she or he is eligible for welfare. Many courts will apply broader notions of fairness and require support at a level higher than subsistence. Some states provide that the support cannot be "unconscionably" low. That is a somewhat vague term that means different things to different courts.

Some lawyers think it is a good idea for premarital agreements to contain an escalator clause or a phase-in provision that will increase the amount of assets or support given to the less-wealthy spouse based on the length of the marriage or an increase in the wealthier party's assets or income after the agreement is made.