What to know:
- A prenup can waive spousal support, cap it, tie it to marriage length, or set a sunset date, and because a total waiver draws the most scrutiny, many couples choose to shape support rather than erase it.
- Since 2019, alimony under agreements signed after December 31, 2018 is no longer tax-deductible for the payer or taxable for the recipient, according to the IRS, which changes what a support dollar is worth on both sides.
- In California, a spousal-support waiver is enforceable only if the waiving party was represented by independent counsel at signing, under Family Code section 1612(c), and a court can still refuse to enforce it if it is unconscionable at the time of divorce.
- A few states, including Iowa, New Mexico, and South Dakota, generally will not enforce a premarital spousal-support waiver at all, regardless of how the clause is written.
- Traditional attorney-drafted prenups commonly run $2,500 to $10,000 or more per person; First's Lawyer Review package is $3,500 and includes an independent attorney for each partner.
When couples think about marriage, they are usually picturing shared homes and travel, not spreadsheets and support clauses. But if one of you earns more, or one of you is planning to step back from work to raise kids or follow the other's career, spousal support is one of the money questions a prenup can answer ahead of time. Deciding it together, in advance, means you are not leaving it to a court's discretion years from now.
Spousal support (sometimes called alimony or spousal maintenance) is money one partner may pay the other after a marriage ends. It is meant to balance a financial gap when one spouse earned less or gave up income-generating opportunities during the marriage. Alimony is less common than it once was, and the share of recipients who are men, while small, has grown over the decades, according to U.S. Census Bureau data on alimony receipt. A prenup lets you decide how support works for the two of you rather than relying on your state's defaults. The question is not only whether a waiver holds up. It is what a waiver buys you, and what it costs.
What can a prenup actually do about spousal support?
Most couples assume the choice is binary: waive support or don't. It isn't. A prenup gives you four levers, and you can pull any one of them or combine them.
The first is a full waiver, where neither partner can request support at divorce. The second is a cap, which limits support to a set dollar amount or a set monthly figure. The third is a duration limit, which caps how long support lasts or ties it to the length of the marriage. The fourth is a sunset clause, a term that causes a waiver to expire automatically after a set number of years of marriage.
Premarital agreements are governed in most states by a shared framework. The Uniform Premarital Agreement Act and its successor have been adopted by 29 states plus the District of Columbia, according to the Uniform Law Commission. That framework generally permits couples to address spousal support, though the rules for enforcing a waiver vary from state to state. This is why the same clause can hold up cleanly in one state and fail in another. For the mechanics of what makes any prenup stick, see our guide on what makes a prenup enforceable.
What does a spousal support waiver actually buy you?
A waiver buys predictability. Without one, spousal support at divorce is left to a judge weighing factors like income, the length of the marriage, and the standard of living the couple built together. That process can be slow, expensive, and hard to forecast. A waiver replaces that uncertainty with a decision the two of you made while things were calm and clear.
For the higher-earning partner, a waiver caps a large potential liability. For both partners, it removes one of the most contested pieces of a divorce from the table entirely. No guesswork, no default state rules, no surprise support fight years down the line. That clarity is often the point of doing a prenup in the first place, and it is a money-planning decision as much as a legal one. Our piece on prenup financial planning walks through how a support decision fits into your broader picture.
Deciding this in advance does not mean either of you expects the marriage to end. It means you would rather define your financial independence together, with full information, than hand the question to a stranger in a courtroom later.
What does a waiver cost the lower-earning partner?
A full waiver has a real cost, and it usually lands on the partner who earns less or plans to. This is the part many prenup pages skip.
Consider a couple where one partner leaves a career to raise children, relocate for the other's job, or run the household. That partner may spend years out of the workforce, lose seniority, and re-enter at a lower salary if the marriage ends. A full waiver means that partner walks away with no support to bridge that gap, even though the sacrifice benefited the marriage. That can be a fair outcome when both partners have similar earning power and no career sacrifice is planned. It can be a heavy one when the sacrifice is real and the income gap is wide.
This is worth talking through before anyone signs. If you are the partner more likely to step back from earning, our guide on what to ask for in a prenup covers the interests worth protecting, and our piece on prenups and caregiver arrangements speaks directly to the income-sacrifice scenario. A waiver is one tool among several, and for many couples in this situation, a cap or a sunset clause fits better than an outright waiver.
How did the 2019 tax change affect what alimony is worth?
For decades, alimony came with a tax break that shaped how couples negotiated it. The higher earner deducted the payments, and the recipient reported them as income. Because the payer was usually in a higher tax bracket, that split moved money into a lower-taxed pocket and left more to go around.
That changed. Under agreements signed after December 31, 2018, alimony is no longer deductible for the payer and no longer counted as income for the recipient on federal returns, according to IRS Topic No. 452. The shift came from the 2017 Tax Cuts and Jobs Act. Agreements finalized before 2019 keep the old rules unless they are modified to adopt the new treatment.
Why this matters for your prenup: a support dollar now costs the payer a full pre-tax dollar and arrives to the recipient as a full untaxed dollar. There is no longer a tax arbitrage to soften the trade. That makes every support figure in a prenup a straight-across number, and it is worth running the math with current rules rather than assuming the old deduction still applies.
Where do spousal support waivers hold up, and where don't they?
A waiver is only as good as its enforceability, and enforceability turns on how the agreement was signed and which state's law applies.
California is the strictest example worth knowing. Under California Family Code section 1612(c), a spousal-support provision, including a waiver, is not enforceable against a party who was not represented by independent counsel when the agreement was signed. That rule is stricter than the standard for other prenup provisions, and it cannot be waived in writing. On top of that, a California court can refuse to enforce a support waiver if it is unconscionable (so one-sided or grossly unfair that a court declines to enforce it) at the time of enforcement, even when the waiving party had independent counsel. California also applies a seven-day rule to prenups generally: the final draft must be delivered to both parties at least seven days before signing. Our California prenup guide covers those rules in more detail.
A few states go further and will not enforce a premarital waiver of spousal support at all. Iowa, New Mexico, and South Dakota generally will not honor a premarital support waiver, regardless of how carefully the clause is drafted. If you live in one of those states, a waiver clause may not hold no matter what it says, which is a reason not to over-rely on the language alone.
Everywhere, the baseline requirements still apply: the agreement must be signed voluntarily, with full financial disclosure, and cannot be unconscionable. Independent counsel and full disclosure at signing improve the odds a waiver survives a challenge. Enforcement is never automatic, and no prenup can guarantee a court will uphold a waiver.
What are your options if a full waiver feels like too much?
For a lot of couples, an all-or-nothing waiver is not the right fit, and the good news is that it is not the only structure available. Middle-ground terms often survive a challenge more easily than a total waiver, because they read as a considered plan rather than one partner giving up everything.
Here is how the common approaches compare.
| Approach | What it does | Who it tends to suit |
|---|---|---|
| Full waiver | Neither partner can request support at divorce | Couples with similar earning power and no planned career sacrifice |
| Cap | Limits support to a set amount | Couples wanting predictability with a safety net |
| Duration limit | Caps how long support lasts | Couples anticipating a shorter support window |
| Tie to marriage length | Scales support to years married | Couples who want fairness to track the marriage |
| Sunset clause | Waiver expires after set years | Couples protecting early-marriage assets but open to change later |
A sunset clause is worth a closer look for younger couples. It lets a waiver protect assets in the early years, then expire after a set number of years of marriage, so a long marriage does not leave the lower-earning partner with nothing. A cap does similar work by keeping support predictable while preserving a floor of protection. If your circumstances change after you sign, some couples revisit these questions later; if that comes up, consult independent legal counsel about a postnuptial agreement.
Frequently Asked Questions
Can a prenup waive spousal support entirely?
In most states, yes. A prenup can waive spousal support entirely if it was signed voluntarily, with full financial disclosure, and isn't unconscionable. A few states, including Iowa, New Mexico, and South Dakota, generally won't enforce a full waiver. California allows it but requires the waiving spouse to have had independent counsel.
Does a spousal support waiver always hold up in court?
No. Even a properly signed waiver can be set aside if a court finds it unconscionable at the time of enforcement, meaning grossly unfair given the circumstances at divorce. Independent counsel and full financial disclosure at signing significantly improve the odds a waiver holds, but enforcement is never automatic.
Can we limit spousal support instead of waiving it completely?
Yes. Couples don't have to choose all-or-nothing. You can cap support at a set amount, limit how long it lasts, tie it to the length of the marriage, or add a sunset clause that lets a waiver expire after a set number of years. These middle-ground terms often survive a challenge more easily than a total waiver.
Is alimony still tax-deductible?
Not for agreements signed after December 31, 2018. Under the 2017 Tax Cuts and Jobs Act, alimony is no longer deductible for the payer and no longer counted as income for the recipient on federal returns. Agreements finalized before 2019 keep the old rules unless modified to adopt the new treatment.
Does California require a lawyer to waive spousal support in a prenup?
Yes. Under California Family Code section 1612(c), a spousal-support provision, including a waiver, is not enforceable against a party who was not represented by independent counsel when the agreement was signed. This is stricter than the rule for other prenup provisions and cannot be waived in writing.
Can a prenup decide child support too?
No. Child support belongs to the child, not the parents, and a prenup cannot waive or limit it. Courts decide child support and custody separately, based on the child's best interests at the time, regardless of what any premarital agreement says.
Bringing spousal support into your prenup with First
Traditional attorney-drafted prenups commonly run $2,500 to $10,000 or more per person, which is one reason support planning often gets rushed or skipped. For a look at what drives those numbers, see our guide on how much a prenup costs.
If you are weighing whether to waive, cap, or shape spousal support, the point is to decide together with full information, not to guess. First's guided process walks both partners through spousal support terms in clear language, and where you want independent attorneys, connects each of you with your own. When you're ready, you can start your prenup with First on your timeline.
Spousal support rules and tax treatment vary by state and change over time. Couples considering a waiver should consult independent legal counsel before signing.
Methodology
These figures are drawn from named primary sources: the tax treatment from IRS Topic No. 452 covering agreements executed after December 31, 2018; the California waiver rules from California Family Code sections 1612(c) and 1615(c); and the multi-state adoption figure from the Uniform Law Commission. First's cost range reflects First's own published pricing and observed market rates for attorney-drafted agreements as of 2026.
Sources
- IRS Topic No. 452, Alimony and Separate Maintenance: supports the post-2019 tax treatment of alimony for payer and recipient.
- California Family Code section 1612(c): supports the independent-counsel requirement and the unconscionability-at-enforcement rule for spousal-support waivers.
- Uniform Law Commission: supports that the UPAA/UPMAA framework has been adopted by 29 states plus the District of Columbia.
- U.S. Census Bureau: supports directional historical framing of alimony receipt over time.
First is not a law firm. The information and tools provided by First on this site are not legal advice and not a substitute for the advice of an attorney.