When most people think about divorce and settling their affairs for the future, they presume that spousal support (alimony) will be awarded by the court or agreed upon in a marital settlement agreement. While this is true in many cases, only about 15-20% of failed marriages result in an award of alimony. For some couples, each spouse has the means and earning capacity that spousal support is unnecessary. For others, neither spouse has the ability and/or need to pay or receive alimony. Whatever the case may be, it may be necessary or appropriate to waive your right to alimony; and in Virginia, there are many ways to do so. But before you waive your right to alimony or spousal support, you should always consult with a knowledgeable divorce attorney—like those at the DiPietro Family Law Group—to ensure waiving alimony is in your best interests now and for the future.
In Virginia, you can waive your right to alimony in a number of ways:
Most of us are familiar with what a prenuptial agreement is. This is a contract you and your spouse signed before your marriage that details what property will remain separate in the event your marriage breaks down. A prenuptial agreement will often contain provisions regarding spousal support, setting limits on the amount that will be paid or minimums, possibly in a lump sum or over time. The terms may stipulate that alimony will only be paid if there is a need or while one spouse is earning a certain salary. In fact, because the law favors the freedom of contract, you and your spouse can agree to almost anything in a prenuptial agreement. This includes an agreement to waive alimony.
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).
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 the state of Virginia. 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.
At the DiPietro Family Law Group, we have decades of experience representing individuals considering or going through a divorce, and can guide you through the process. We will also counsel you on drafting and executing pre and post-marital agreements, as well as ensure that your rights are fully protected. Call us today for a consultation at (888) 530-4374 or submit a form online.