How Does Alimony Work with a Prenuptial Agreement?

A contentious and drawn-out divorce case has been travelling through Florida courts for several years. The most recent issue in this case deals with characterization of payments as alimony or salary in a prenuptial agreement that includes a waiver of alimony.

The parties in the case waived their right to alimony in a properly signed prenuptial agreement. Even though there was an alimony waiver, the prenuptial agreement stated that upon the entry of a final judgment of dissolution of marriage, the Former Husband or one of his companies would pay the Former Wife $6,000 per month for 24 months.

When “Alimony” is not Alimony

Judge Robert M. Gross noted in his opinion for the Fourth District Court of Appeal that, although the trial court found the parties waived their right to alimony in the prenuptial agreement, it found that the parties intended the salary payments “would be a form of alimony e.g. durational alimony.” This find was an error, the appellate court found.

The Florida Supreme Court has said that when deciding whether to enforce a prenuptial agreement, trial courts must carefully examine the circumstances surrounding the agreement because parties to a prenuptial agreement are not dealing “at arm’s length,” as opposed to a business contract. The Supreme Court has held that valid prenuptial agreements regarding post-dissolution support are contracts, and these contracts are to be construed to give effect to the intent of the parties. The Supreme Court also explained that while Florida courts recognize a vast difference between a contract made in the market place and one dealing with marriage, those courts enforce valid prenuptial agreements regarding post-dissolution support as a matter of contract. But the difference is in the standard used to determine the contract’s validity. Although contract principles play a role in dissolution proceedings, courts must remember that proceedings under Florida Statute Chapter 61 are in equity and governed by basic rules of fairness—not the strict rule of law.

Prenup Waiver Means Salary Payments Outside Chapter 61

In this case, neither party questioned the validity or enforceability of the prenuptial agreement. However, Judge Gross explained that in waiving the right to alimony, the parties intended to take the gross salary payments outside Chapter 61 and outside the power of the trial court to hold Former Husband in contempt if he failed to pay. Instead of enforcement by contempt, the employment prenuptial agreement contemplated that the non-payment of “salary” would be enforceable as any other employment contract, by a traditional breach of contract action. Because this wasn’t in effect a marriage contract but an agreement more of a business nature, the trial court erred in failing to give the prenuptial agreement the effect intended by the parties.

The judgment was reversed and remanded because the trial court erred by treating the gross salary payments set forth in the prenuptial agreement as a form of alimony. Whissell v. Whissell, 2017 Fla. App. LEXIS 10059; 42 Fla. L. Weekly D 1533 (Fla. DCA 4th July 12, 2017).

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One of the most difficult and complex areas of divorce is the division of marital assets and liabilities. The divorce process is supposed to be much easier with a prenuptial agreement; however, that’s not always the case. You need to understand your legal rights and obligations in enforcing this contact. Hire an experienced divorce attorney to advise you about your rights, especially as they relate to a prenuptial agreement and alimony. Call DeVoe Law Firm to schedule a free consultation with an experienced divorce attorney.