Fighting a Lot With Your Spouse? This Controversial Legal Move May Be the Answer
Why more married couples are heading to their lawyer’s office.
Even after you say “I do,” you can say “I don’t”—at least when it comes to money.
When 33-year-old Alexa and her husband Jack were preparing to buy a home in Los Angeles, Jack’s parents wanted to protect the portion of the down payment they gifted their son. So they demanded that the couple get a postnuptial agreement—a legal document created after marriage that addresses how finances or assets will be handled in the event of a divorce or death. Alexa and Jack, who already owned a condo together and had been happily married for seven years with two small children, had never signed a prenuptial agreement. And the small possibility of divorce down the road had Jack’s parents worried, as it would mean half of their money would go to Alexa, instead of back to them.
The couple, who wanted to remain anonymous for professional reasons, spent roughly $20,000 on legal fees to get the postnup drawn up, which stipulated that should they divorce for any reason, the down payment would be returned to his family, and any appreciation on the home would be divided down the middle. “Signing a postnup made me feel like my parents-in-law didn’t really trust me, which brought up some issues,” Alexa says. “But we’ve moved beyond that and are now very happy in our home.”
Prepare to see more of these postnups, experts say: “As spouses emerge from the worst of the pandemic, we’re expecting to see an increase in postnuptial agreements, as we find resolving things in courts may be years away,” says Susan Myres, president of the American Academy of Matrimonial Lawyers (AAML), and a Houston family lawyer for more than 30 years.
And even before the pandemic, postnups were on the rise: The most recent data from the AAML revealed in 2016 that 62% of its members saw an increase in couples signing postnuptial agreements. “In the past, people may have considered a prenup, but weren’t aware that a postnup was even possible,” says Penelope Hefner, a family law attorney at Sodoma Law Union in Monroe, NC. But thanks, in part, to increased attention on postnups, people are aware of this option, the stigma associated with it has lessened, and now more people are opting for them, explains Jacqueline Newman, a New York City-based divorce attorney and author.
Sometimes, of course, postnups are created when marriages are strained. Newman says that one of the most common reasons she gets clients asking for a postnup is because one party had an affair. And attorney Emily Pollock, a partner at Kasowitz Benson Torres in New York City, says that she sees couples opt for a postnup when they are “on the brink of divorce” and want to “resolve some or all of the financial tensions” so they can focus on other issues like, for example, child custody.
But plenty of other times, a postnup is created simply to settle complicated financial issues—especially those that cause or may cause arguments or marital strife. If one party comes into a substantial amount of cash, that may prompt a postnup—as it did with Jack, whose parents gave him a down payment on a home. Or when one spouse starts a new business or makes a substantial new investment, the postnup may be used to determine how the parties will share in any liability or assets resulting from that decision, says Pollock. Other reasons to get a postnup include: if you’re in a second (or subsequent) marriage and want to make sure your kids get your assets if a divorce occurs, or if you quit work to care for your children and want to ensure you are taken care of beyond what the law provides should you get divorced.
Is a postnup right for you? Newman recommends postnups for those who have even small concerns about divorce or death. “You can address how assets are divided upon divorce, how spousal support will be addressed and whether you want to address the rights upon death of a spouse,” says Newman. Basically, if you have a significant financial question mark in your marriage that is not adequately resolved by a prenup, estate plan or existing laws, a postnup may be worth considering, especially if you think the marriage might not survive.Postnups are often far less pricey to get than a prenup.
“Spouses are typically on the same page when it comes to a postnup, which results in less negotiations involving attorneys,” says attorney Kelly Frawley, also a partner at Kasowitz Benson Torres’ New York City office. With a prenup, “the soon-to-be spouses more often than not have different priorities requiring more back and forth between counsel.” Still, a postnup can cost you anywhere from a few hundred dollars to tens of thousands, so it’s important to weigh the cost of attorney’s fees with what you stand to gain (or lose) without a postnuptial agreement.
And, of course, you must consider the emotional costs and potential marital strain of asking for and getting a postnup. Alexa admits that she and her husband haven’t discussed the issue since they signed the document, but adds that she could potentially benefit from it. “I took it personally that my father-in-law wanted us to get a postnuptial agreement, and my lawyer thought I should be able to get something out of the deal too, since the postnup was essentially a dig at me,” Alexa says. So she added “a clause that makes me entitled to keep any money I earn during the marriage, instead of considering it community property,” Alexa says.