State laws do not set a specific amount of support that must be provided in premarital agreements.
If, after a divorce, the parties are capable of self-support, based on their assets, income, and job skills, a court could uphold an agreement that provided no property or support to the less wealthy spouse.
If, on the other hand, the less wealthy spouse cannot be self-sufficient and the agreement provides little or no property or support, courts in most states are likely to step in and order some distribution of property or support in favor of the less wealthy spouse. That amount will vary from state to state. In some states, the amount needs to reach only a subsistence level–enough to keep the less wealthy spouse off the welfare roles. Many courts will apply broader notions of fairness and require support at a level higher than subsistence.
A standard used by some courts is unconscionability. That refers to agreements that are unusually harsh and unfair. Some courts define an unconscionable agreement as one that no sensible person would offer and no sensible person, not under duress or delusion, would accept. Since the standard of unconscionability is subjective, courts have interpreted the term in different ways, but if a court finds an agreement to be unconscionable, the agreement will not be enforced.
To promote fairness and avoid unconscionability, many lawyers drafting premarital agreements favor including an escalator clause or a phase-in provision that will increase the amount of assets or support given to the less wealthy spouse based on the length of the marriage or an increase in the wealthier party’s assets or income after the agreement is made.
If the wealthier party is concerned that his or her assets could drop sharply at a later time, the wealthier spouse may wish to include a provision to provide protection in such a circumstance. If the agreement provides for a fixed dollar amount to the less wealthy spouse, the wealthier party might add a provision that says in no event shall the amount of property given to the other spouse exceed half (or some other percent) of the wealthier party’s assets. Alternatively, the payment of assets at time of divorce (or death) could be set as a percent of the wealthier party’s assets at the time of divorce (or death).