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What is a postnuptial agreement and why do I need to consider one?

By July 17, 2014July 21st, 2023From the Lawyer's Desk

How many times have you thought to yourself, or told your friends or family that, “I can’t talk to my spouse at all,” It seems couples can talk to anyone but their spouse when a marriage is in trouble. If they do manage to communicate at all, it often results in a shouting match. A couple can try to discuss issues with a marriage counselor, but it’s not always an effective way to resolve deep-rooted beliefs regarding money.  Often spouses have different views about the purpose of money, for example, saving it for financial security or how to spend it.  In my experience, money issues are rarely addressed before marriage.  Yet, if the couple had considered a prenuptial agreement they may have determined that they had completely different views about money and may have avoided the subsequent marital discord over money.  But, what if you’re already married and encountering the same arguments?

As a family lawyer, I would suggest that one way to identify and resolve these concerns is to draw up a postnuptial agreement. Postnuptial agreements, sometimes known as “postnups,” are written and signed after you’re married. The agreement spells out the obligations and responsibilities of each partner.  In fact, marriage is an economic partnership in which both parties can benefit from a written contract.  These agreements can deal with the possibilities of divorce and death.

Preparing a postnup may be a surprisingly beneficial experience for couples. It is an opportunity to analyze their assets, debt, and spending habits, and to look at the impact of financial stress on their emotional lives. Grievances can be aired and insecurities expressed. Couples can discuss issues such as how much spending money should be given to children from a first marriage, or how to handle shared expenses as well as individual spending.  Saving money can be addressed.  Protecting premarital property or inherited or gifted property can be covered. Mostly importantly, the couple is able to agree to terms acceptable to both.

Lawyers may be able to propose concrete solutions to these situations.  Each party’s fears and concerns can be addressed, clarified and compromised to their mutual satisfaction.  This may ultimately be worth every penny when compared to the cost of a contentious divorce where there is no concrete solution already spelled out.

More and more married couples are preparing postnups. If you’ve remarried and have children from a previous marriage, and didn’t sign a prenuptial agreement, then you should seriously consider entering into a postnup.  If you came into the marriage with a disproportionally larger amount of property, or anticipate a substantial lifetime inheritance or gift you should consider a postnup.   If you have forgone your career to raise children or retired earlier than expected, a postnup can be considered.   These are but a few of the reasons to consider a postnup.

Postnups consider these and other financial and legal issues. Yet, trust is an essential element in the development of a postnup agreement.  Each spouse may think the other has an ulterior motive. This can make an already difficult situation into an adversarial one.  But a postnup shouldn’t be a fight to the finish and it doesn’t have to be.

At this juncture, what is necessary is that the postnup involves a common understanding of how to handle contentious financial issues. When a postnup is completed, the couple has an opportunity to move beyond their disagreements and to make their marriage viable. If their marriage does dissolve, the postnup agreement becomes the framework for a separation agreement. This spares the clients from the emotional stress of negotiating with their partner when things have turned sour, and additionally saves legal fees.

It can be better for married couples to discuss tough issues while they are still committed to the marriage–before any battle lines are drawn. Sometimes it’s better to hold that discussion in the office of your attorneys, rather than with a marriage counselor.

An attorney experienced in negotiating prenuptial and postnuptial agreements is a must.


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