Imagine that your marriage is a business partnership and your personal financial situation changes dramatically for the better. You’re now putting a lot more money into the marriage than you were previously. Do you now seek a written agreement to discuss the finances of the marriage and what would happen if the marriage ends in divorce? Or if you have an existing written agreement, do you seek a new agreement with your spouse about how to divvy up the marital assets in the event the marriage fails?
Financial changes in a marriage happen all the time. Marriage is, in effect, an economic partnership. . Some couples enter into the partnership with a prenuptial agreement – a written contract between the two that determines what will happen financially in the event the partnership dissolves, i.e., the couple divorces. But most couples do not.
At Keil & Siegel we are receiving an increasing amount of requests for post-nuptial agreements after even 20-30 years of marriage. It would seem to be a nationwide trend. A survey of matrimonial attorneys from 2012 indicated that more than half of divorce attorneys noted an increase in postnuptial agreements in their practice. About a third of those noticed an increase in postnups requested by women. Such a result may not surprise as women increase both their role in the workforce and their earning capacity.
Additionally, couples are seeking post-nuptial agreements with infidelity clauses that impose financial penalties for adulterous relationships during the marriage. Once the postnuptial agreements are complete, couples seem to have a sense of security and freedom knowing that the marriage can continue without the worry of finances in case it should end in divorce. This seems to eliminate pressure, and allow a sense of ease in the marriage. The reduction in tension permits couples to continue in a marriage that otherwise may have ended.
Some couples may find that they wish they had entered into a prenuptial agreement. Others, considering divorce, may enter into a postnuptial agreement so as to avoid the cost of litigating a divorce, or perhaps as a means of discussing problem areas in a marriage and avoiding divorce altogether. A postnuptial agreement will usually address issues such as the division of assets and liabilities, maintenance (aka alimony). Child support and custody clauses are not enforceable even if included in an agreement as the standard upon divorce is always the best interests of the child at the time of the divorce. Like prenups, postnups may be a worthwhile investment when spouses are independently wealthy, or special circumstances surround the marriage (such as multiple marriages, marriages late in life, or when children from other marriages are present).
Because a postnuptial agreement is a binding contract between two adults, it is advised that each member of the couple have their own attorney assist them with the preparation of the agreement. Postnuptial agreements, if challenged, are looked at carefully in court. A valid postnuptial will be created only after full disclosure of finances by each spouse. Generally, if there is full disclosure and adequate legal representation, the agreements are fully enforceable.