An agreement by two spouses that neither party will pay alimony in a future divorce may be upheld by an Alabama court. The exception is if there is a concern that a spouse hid assets, the contract was made under duress, or the agreement was unconscionable at the time it was made.
A postnuptial agreement, or marital settlement agreement, is an agreement made after the marriage has occurred. A postnuptial agreement can be made at any point after the parties have been legally married. The court will enforce a postnuptial agreement if the spouses disclosed their assets, debts, and financial status at the time they formed the contract, the spouses entered into the agreement voluntarily, and the division of the property at the time of divorce is fair to both parties.
The term “under duress” means that a person agreed to a provision in a contract because the other party forced them to agree or threatened them. This issue goes to the idea that both spouses entered into the agreement voluntarily. The term “unconscionable” means that a portion of a contract is so unfair to one party that it constitutes abuse.
This issue goes to division of the property at the time of the divorce being fair to both parties. A division is unfair if it would leave a spouse with less money, assets, or tools at their disposal to continue living independently after the marriage ended. In addition, if both parties put work into a property during the marriage, such as a mountain cabin, an agreement that awards one spouse full ownership of the property could be determined to be unfair at the time of divorce.
The Code of Alabama provides that if the court awards alimony, it can modify its order if the spouse receiving alimony has remarried or is living openly or cohabiting with a member of the opposite sex. The spouse receiving alimony does not have to reimburse alimony payments they have already received.
Why make a postnuptial agreement denying or limiting alimony?
Two spouses may make a postnuptial agreement regarding alimony to protect a business, guard a family inheritance, repay gifts, and handle debts on the couple’s own terms. As to a family business, a postnuptial agreement could allow one spouse to purchase the other’s share of the company. This would prevent the company from being sold and divided.
Spouses can change their postnuptial agreement as long as the changes are in writing and signed by both parties. There can be multiple postnuptial agreements. The latest postnuptial agreement that relates to alimony will be the one that controls the terms of alimony. If any of the multiple postnuptial agreements are unfair or were made without full disclosures, the court may not find such agreements to be binding.
A postnuptial agreement can cover all types of alimony, including alimony to be received while the divorce is pending, temporary alimony, and rehabilitative alimony. Spouses who want to form a postnuptial agreement together should talk to a family law attorney about how to best craft the agreement to meet their different needs. If the parties do not have the same interests, they should consult separate attorneys. The two attorneys should work together to draft the postnuptial agreement.
A postnuptial agreement that covers alimony will not govern the amount of child support. The exception is if the agreement also explicitly has different clauses relating to child support. Alabama state law sets the minimum amount of child support a spouse is required to receive, not the terms of the postnuptial agreement.