For a long time Tennessee would not even allow the waiver of post-nuptial alimony. Then came Cary v. Cary and Bratton v. Bratton. Then in apparent response to Bratton the legislature amended the alimony section of the Tennessee code annotated to allow Courts to incorporate agreements between parties as to the broad term of "support and maintenance" not just alimony. The legislature also included in the newly split off from alimony section of the Tennessee Code a separate section on Child Support that would appear to allow parties to limit their liability for child support in a pre-nuptial. I believe that limiting child support by prenuptial would be substantially more complicated and require extremely careful and informed drafting. A very interesting issue that may be addressed in another article later.

Antenuptial or prenuptial agreements are "long favored by public policy" in the state of Tennessee. Bratton v. Bratton, 136 S.W.3d 595, 599 (Tenn. 2004). This includes the issue of spousal support. Id.; see also Cary v. Cary, 937 S.W.2d 777, 782 (Tenn. 1996). Courts enforce prenuptial agreements "like any other contract". Id.; see also Cary, 937 S.W.2d at 782.

It is true that the general and traditional rule is that a prenuptial agreement cannot waive a pendente lite duty of support. Solomon v. Solomon, 224 A.D. 2d 331(N.Y. App. Div. 1996); Boyer v. Boyer, 925 P.2d 82 (Okla. Ct. App. 1996)("matters within scope of statue… such as support"); Belcher v. Belcher, 271 So.2d 7 (Fla. 1972); see also Goldberg C.,"If it ain’t broke, Don’t Fix It": Premarital Agreements and Spousal Support Waivers in California, Loyola of Los Angeles Law Review, Vol. 33, 1245, 1257 fn 64, 2001 (extensive discussion in footnote on case law and topic of waiver of pendente lite support in prenuptial).

However, other states courts have been recognizing that a prenuptial agreement may waive spousal support frequently including pendente lite support, though not always specifically as it is rarer for that to be an appellate issue. In re Marriage of Pendleton and Fireman, 5 P.3d 839, 848 (Cal., 2000)("a premarital waiver of spousal support does not offend contemporary public policy."). The Supreme Court of South Carolina in Hardee commented prenuptial agreements waiving support are not "per se unconscionable, nor are they contrary to the public policy", that Court went on to specifically in footnote 3 overrule prohibition against waiving by agreement the duty of support from Towles. Hardee v. Hardee, 585 S.E.2d 501, 503-05 (S.C. 2003)("no longer warranted in today’s society"); overruling Towles v. Towles, 182 S.E.2d 53 (1971). The Supreme Court of Pennsylvania allowed a waiver of pendente lite support based on language simply waiving alimony. Musko v. Musko 697 A.2d 255, 257 (Pa. 2000).

The Tennessee Supreme Court in Bratton addressed the issue that antenuptial agreements were void for not just alimony but support as well. It stated that an agreement on nuptial issues may make agreement on spousal support issues without consideration of "any" statutory factors. Bratton, at 600.

The Tennessee legislature amended the Tennessee code on alimony and support in 2005 and specifically included in the alimony section provision that "nothing" in that section should be construed to prevent incorporation "in a decree of an agreement between parties as to support and maintenance". T.C.A. §36-5-121(m). The section provides that "alimony" of various types may be awarded. T.C.A. §36-5-121(a). It also provides for pendente lite and characterizes such as "support and maintenance". T.C.A. §36-5-121(b). The Tennessee legislature chose the most broad terminology of "support and maintenance" for subsection (m) of T.C.A. §35-5-121.

That subsection should be held to effect the entire section as a principle of statutory construction to give effect to legislative intent. If the legislature had intended to disallow as against public policy prenuptial agreements effecting any duty of support they would have chosen more restrictive terminology such as simply alimony which is the traditional term for support payments after marriage. In addition, as a principle of statutory construction a subsection stating that it effects a section should be treated as effecting an entire section unless restricted in some way. When construing a statute, courts are to give effect to the ordinary meaning of the words used in the statute and presume that each word used was purposely chosen by the legislature to convey a specific meaning. State v. Denton, 149 S.W.3d 1, 17 (Tenn. 2004) (citing State v. Jennings, 130 S.W.3d 43, 46 (Tenn. 2004)). A court should not unduly restrict a statue’s intended scope. State v. Marise, 197 S.W. 3d 762, 766 (Tenn. 2006). A forced or subtle effect should not be used. Tennessee Farmers Assur. Co. v. Chumley, 197 S.W.3d 767, 779 (Tenn. App. 2006).

Tennessee has aggressively legislated to curtail litigation costs from T.C.A. §29-5-302 that provided for enforceability of arbitration agreements to the one year statue of limitations on personal injuries.

The Tennessee legislature changed alimony and support code sections following a Supreme Court decision that enforced prenuptial agreements as "any other contract". The legislature clearly intended to codify those decisions and clarify them by inserting a provision providing that the ability of courts to enforce agreements as to "support and maintenance" were not to be effected by those code sections.

Thus it appears that Tennessee through Supreme Court precedent and direct legislation on the subject has joined the modern trend in allowing parties to modify the duty of support even on a pendente lite basis by antenuptial agreement, except as to render a spouse a public charge.

Please note above article concerns uncertain areas of the law and is provided for information only. You should consult a licensed attorney in your jurisdiction for specific advice to your situation. The author Memphis Lawyer David Sandy may be contacted at attorneydavid@mymemphislawyer.com and his website is www.mymemphislawyer.com and his divorce law blog is www.memphisdivorceblog.com . This article is copyrighted by author but may be reproduced without editing and must include this final paragraph.