When spouses decide to part ways, they must confront issues such as how to divide property and debts. For many spouses, maintaining at least the same standard of living is also a concern.
A spousal support agreement can help resolve these issues without accumulating significant expenses in court only to face an uncertain outcome.
When To Do A Spousal Support Agreement
Parties might choose to provide for spousal support in a prenuptial, or premarital, contract. However, the couples’ financial condition is more likely to change between entering such an agreement and separation. In a separation agreement, the parties are more likely to negotiate based on known facts and conditions.
Amount And Type
Spousal support doesn’t always come via a monthly cash payment. For couples with a marital home, a spouse might assume responsibility for the mortgage and let the supported spouse live there. Other means of support may include maintaining life or health insurance or defraying some of the recipient’s expenses.
When cash is the method of support, the parties will arrive at it by negotiation. By contrast, the amount of alimony or post-separation support, if any, turns on what is needed to maintain the dependent’s accustomed standard of living and the supporting spouse’s ability to pay.
Cash support can take the form of a lump sum payment or monthly payments for a specified time, or until terminated by the happening of an event.
Termination Of Agreement
In a typical agreement, the obligation to support will end upon the first happening of:
Death. If the agreement doesn’t say the support stops at death, then the survivors of the recipient may claim a right to continued payments.
Where the payer seeks to deduct alimony from income taxes, the agreement must end payments on death of the recipient.
Remarriage or Cohabitation of the Recipient. Commonly, a separated or ex-spouse can terminate the obligation where the recipient marries.
A separation agreement can also end support when the recipient cohabits, that is, lives with another for a specified period of time.
Reconciliation. Spousal support can terminate when the parties resume their marital relationship. Normally, living under the same roof constitutes reconciliation.
However, spouses who move back in may not be reconciled if, for example, they occupy separate rooms or parts of the home.
Where one party supports the other by assuming the mortgage, the obligation ends when the recipient leaves the home, cohabits with another in the home or remarries.
In some agreements, the parties may opt for a definite end date for spousal support.
Waiving The Right To Court-Ordered Alimony Or Support
By entering into a spousal support agreement, the parties give up their right to have alimony or support determined by the court.
Thus, the court does not determine factors such as standard of living, dependency or the supporter’s ability to pay. With waiver language, the agreement bars the parties from starting legal proceedings for alimony or other spousal support.
Typically, an agreement will provide the parties cannot change spousal support provisions except by written agreement of the parties.
Below is one sample of a letter setting of the agreement for spousal support. The propriety of using any particular language will depend on the parties’ particular wishes and situation.
Sample Spousal Support Agreement Letter
The parties herein were married on ________________. As a result of differences and circumstances which have developed between them, the parties desire and agree to live separate and apart as provided below. In exchange and consideration for living separate and apart….
Alimony And Spousal Support
(Spouse 1) shall pay to (Spouse 2) the sum of ________ per month for support and maintenance of (Spouse 2). The payment shall be due on ____ day of each month and shall be delivered in cash or certified check.
The obligation of (Spouse 1) to pay support to (Spouse 2) shall end upon the earlier of either Spouse’s death, the remarriage of Spouse 2, reconciliation of the parties; or cohabitation of Spouse 2.
Except as expressly provided herein, each party hereby forever waives and relinquishes his or her right to alimony, spousal support, post-separation support or similar payments and his or her right to maintain any legal proceeding or action to claim any such alimony or support. This agreement may be pleaded as a defense or bar to any such action or claim.
The provisions of this agreement may not be modified except by express written agreement of the parties. It shall not be a ground to amend this agreement that either party has experienced a change in financial condition.
Each party has fully disclosed to the other the party’s respective financial condition. The parties, by their signatures below, voluntarily and knowingly enter into this agreement.
This the ___ day of _______, 2022.
Signature ___________________ (Spouse 1) (SEAL)
Signature ___________________ (Spouse 2) (SEAL)