Amount of Support

State laws do not set a specific amount of support that must be provided in premarital agreements.

If, after a divorce, the parties are capable of self-support, based on their assets, income, and job skills, a court could uphold an agreement that provided no property or support to the less wealthy spouse.

If, on the other hand, the less wealthy spouse cannot be self-sufficient and the agreement provides little or no property or support, courts in most states are likely to step in and order some distribution of property or support in favor of the less wealthy spouse. That amount will vary from state to state. In some states, the amount needs to reach only a subsistence level--enough to keep the less wealthy spouse off the welfare roles. Many courts will apply broader notions of fairness and require support at a level higher than subsistence.

A standard used by some courts is "unconscionability." That refers to agreements that are unusually harsh and unfair. Some courts define an unconscionable agreement as one that no sensible person would offer and no sensible person, who was not under duress or delusion, would accept. Since the standard of unconscionability is subjective, courts have interpreted the term in different ways, but if a court finds an agreement to be unconscionable, the agreement will not be enforced,

Under a law called the Uniform Premarital Agreement Act, which has been adopted in approximately half the states, "unconscionability" by itself is not enough to make an agreement unenforceable. Under the act, the party seeking to have the agreement held unenforceable on the basis of unconscionability also must show three things: (1) that the party was not "provided a fair and reasonable disclosure of the property or financial obligations of the other party;" (2) that the party did not waive such disclosure in writing; and (3) that the party "did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Nonetheless, under the uniform act, support can be ordered if the elimination or modification of support under the agreement will result in "undue hardship in light of circumstances not reasonably forseen" at the time the agreement was signed. For example, if a young working woman signed a premarital agreement that left her with no support in the event of divorce, but she suffered a disabling injury after fifteen –years of marriage, and her husband then sought a divorce, a court probably would order support.

For discussion of the general standards for dividing property and alimony or maintenance in the absence of a valid premarital agreement, see chapters 10 and 11.

If the wealthier party is concerned that his or her assets could drop sharply at a later time, the wealthier spouse may wish to include a provision to provide protection in such a circumstance. If the agreement provides for a fixed dollar amount to the less wealthy spouse, the wealthier party might add a provision that says in no event shall the amount of property given to the other spouse exceed half (or some other percent) of the wealthier party's assets. Alternatively, the payment of assets at time of divorce (or death) could be set as a percentage of the wealthier party's assets at the time of divorce (or death).

Non-binding Issues

Although premarital agreements can be binding on issues of division of property and alimony, they are not binding on issues of child custody or child support. Parties cannot agree before they marry how custody of a child will be decided in the event of divorce. Courts remain the ultimate guardian of a child's best interest, and courts do not want to encourage a husband and wife to bargain away what is best for the child. A court may consider what the parties declared to be best for the child in a premarital agreement, but the court will not be bound by an agreement entered into before marriage.

A premarital agreement on child support  is not binding on the court for similar reasons. If the agreement on child support meets the child's reasonable needs, the court may choose to follow it, but it is not required to do so. In addition, an agreement of who is responsible for what household chores is not likely to be enforceable. For description of the standards for child custody and child support, see chapters 12 and 13.