- Spousal support provisions are among the most contested prenup terms — take this decision seriously.
- A full waiver works best when both partners have similar earning potential.
- Graduated tiers and conditional arrangements protect the lower-earning spouse in longer marriages or when children are involved.
- New York has a specific maintenance calculator (DRL 236B) that Clause includes as part of every NY prenup.
What is spousal support, and why it matters so much
Spousal support — also called alimony or spousal maintenance — is a payment from one ex-spouse to the other after divorce. It's designed to address economic disparities that develop during a marriage, particularly when one spouse earns less, sacrificed career advancement for the family, or has lower earning potential going forward.
In a prenup, how you handle spousal support is one of the most consequential decisions you'll make. Unlike property division, which is relatively mechanical, spousal support has real effects on both partners' financial security for years after a marriage ends. It deserves careful, unhurried discussion between both partners — ideally with an attorney's input.
Option 1: Full waiver
Both spouses agree to waive any right to receive spousal support from the other, regardless of the circumstances at divorce.
This works well when both partners have similar earning potential and comparable career trajectories. It's less appropriate when there's a significant income disparity, when one partner plans to leave the workforce for an extended period, or when the marriage is likely to be long.
A full waiver signed when both partners are young professionals with similar salaries may feel very different 15 years later if one partner left a career to raise children. Think about the range of scenarios your marriage might actually face.
Option 2: State law decides
The prenup doesn't specify support terms; whatever the applicable state law would award is what applies. This is the most conservative choice — you're accepting whatever the default outcome would be without the prenup, which may or may not be what either partner would choose.
Choosing state law makes sense if you genuinely don't know how to predict your future circumstances, or if you want maximum judicial flexibility. The downside is unpredictability: state law awards vary enormously based on judges, jurisdictions, and the specific facts of the divorce.
Option 3: Graduated tiers by marriage length
Support is calculated according to a scale that increases with the length of the marriage. For example: no support if the marriage lasts less than 3 years; 1 year of support if it lasts 3–7 years; 3 years of support if it lasts 7–15 years; state law applies if it lasts more than 15 years.
This option tends to be popular with couples who have different incomes but want support tied to the actual duration of the marriage rather than a fixed formula. It's perceived as fair by many couples because longer marriages create more economic interdependence and career sacrifice that deserves recognition.
Option 4: Conditional on children
Support is only triggered if the couple has children and one spouse reduces or stops working to care for them. The specific terms — duration, amount formula — are defined in the prenup.
This option addresses a common concern: "We both work now, so a waiver feels fair — but what if we have kids and one of us steps back?" A conditional arrangement lets you waive support in the no-children scenario while protecting the spouse who sacrifices their career for child-rearing.
Option 5: Lump sum
If the marriage ends in divorce, one spouse pays the other a defined lump sum amount, regardless of other circumstances. No ongoing payments, no uncertainty about duration.
Lump sum arrangements provide the most certainty for both parties. The paying spouse knows exactly what they'd owe; the receiving spouse knows exactly what they'd receive. It works well for couples who want clean financial closure but where a full waiver isn't appropriate.
The New York maintenance calculator
New York state uses a specific formula for calculating temporary and post-divorce maintenance under Domestic Relations Law §236(B). The formula takes into account both partners' incomes and produces a specific guideline amount. Clause includes the NY maintenance calculator in all New York prenups, with Exhibit D showing the calculation based on current income figures.
Whatever approach you choose for your prenup, consider consulting with an attorney specifically about spousal support. For most couples, this is the provision that will matter most if the marriage ends, and it deserves individualized professional guidance.
Clause is not a law firm and this article is not legal advice. Spousal support laws vary significantly by state and are subject to change. Consult a licensed family law attorney before finalizing your spousal support terms.