Can One Spouse Voluntarily Give Up All Rights to Support?

If you’re going through a divorce, you want to do it as quickly and inexpensively as possible, but you also want to do it right. For that reason, you should never be in a hurry to waive your rights, whether those rights involve child custody, certain property, or alimony. New York alimony laws have changed recently, and substantial awards of support are harder to get, especially for younger two-career couples in marriages of short duration. As a consequence, more and more parties to divorce are opting to skip the issue of spousal support altogether. But that’s not always in your best interest.

Consider these points:

• The purpose of alimony — Alimony is meant to assist a supported spouse in maintaining a lifestyle reasonably comparable to the one enjoyed during the marriage. You might be able to support yourself but not achieve the standard of living you had previously. That concession should be worth something in negotiations.
• Is it wise to give up something for nothing? — By waiving alimony, you could be losing leverage on other issues. You might think that by acting in good faith to take alimony off the table, your soon-to-be-ex will act in good faith on other matters. But that’s not the way negotiations work. Once you take alimony out of the equation, your bargaining position is weaker, and your spouse can take a hard line on other issues.
• What happens if something goes wrong? — If you waive support in a marital settlement agreement, your spouse could make you sign an “anti-Lepis clause.” This refers to a landmark New Jersey case that addressed the question of whether the court could revisit a marital settlement and modify the waiver of support. If, in the future, you suffer a financial reversal due to a catastrophic illness or long-term unemployment, an anti-Lepis clause would make it much harder for the court to intervene. You might only be able to modify your settlement to get support if you faced “extreme” circumstances.

Even if you ultimately decide to waive your right to spousal support, you shouldn’t even hint at the possibility until you speak to an experienced divorce attorney. Get the best advice available from a knowledgeable source and proceed cautiously from there.

If you are contemplating divorce, learn how Solutions Divorce Mediation, Inc. can work for you. Call us at 1.631.683.8172 or contact our Long Island office online.