Why a Post-Nup Could Save Your Marriage

  •   |   Meghan Freed

While Prenups Are Signed in the Hopeful, Rosy Light of Engagement, Post-nups Are Often Associated With Infidelity or Other Marital Turmoil. But as the Number of Couples Seeking Them Continues to rising (There’s a Rumor Beyoncé and Jay-z Have One), We Pose the Question: Could a Post-nup Actually Be the Secret to a Successful Marriage?

A few months after they got married in 2016, Pennsylvania couple Krista and Ben did something a small, but growing number of Americans are doing: they signed a post-nuptial agreement. Krista was the one who brought up the idea. “The hardest part was the small amount of time between when I had the thought that we should maybe have a marital agreement and the conversation. In my head I was afraid—what if this is weird?” she recalls. “But Ben was super on board.”

“A lot of what motivated our nuptial agreement, and our relationship, is just empathy for the other person,” agrees Ben. “Wanting their life to be as full as possible.”

Both spouses, who declined to give their last names for privacy reasons, were entering the marriage with their own businesses, which they wanted to retain as separate property—Krista is a partner in a PR company and Ben is a self-employed gardener. Krista owns a house that she bought before the marriage. Ben has two children from a previous relationship.

“There were lots of moving parts and different factors that we were going to be combining in our marriage,” says Ben. Their post-nuptial agreement, or postnup, allowed them to have a marriage on their own terms. “We wanted this agreement as a guide,” says Krista. “An understanding we shared, in a formal sense, but also in the knowledge it was something we could modify.”

Family lawyers say more couples are inquiring about post-nuptial agreements—private contracts between spouses that, like their better-known cousin pre-nuptial agreements, can determine the division of a couple’s money and property in a divorce or after the death of one spouse. While pre-nuptial agreements are signed in the hopeful, rosy light of engagement, postnups have a reputation as more transactional agreements, and they are often associated with infidelity or other marital turmoil. But lawyers and some people who have postnups say the agreements can serve couples with particular needs well. They can clarify the issues that lead to conflict, and help each spouse retain ownership of key assets, like a family-owned business. Sometimes they can even help keep a troubled marriage together, or—if it comes to it—simplify and shorten divorce proceedings.

Because of their complicated financial lives, celebrities, and the very wealthy sign postnups relatively often—although usually it only becomes publicly known that a high-profile couple has a postnup if they divorce. Wendi Deng and Rupert Murdoch had a postnup that they updated after the birth of each of their two daughters—and, thanks to their uncontested agreement, a judge finalized the couple’s 2014 divorce in ten minutes. Then their exes hugged before going their separate ways. Seal and Heidi Klum signed a postnup that ensured the singer would receive no part of the Project Runway host’s $70 million fortune. Seal threatened to challenge the agreement but ultimately acquiesced.

Presumably, there are many still-married celebs and one-percenters out there with postnups—there’s a rumor that Beyoncé and Jay Z have one that includes hefty financial penalties for infidelity. And some evidence suggests that, like prenups a generation ago, postnups may be gaining wider acceptance among the 99 percent, too. According to a 2015 survey conducted by the American Association of Matrimonial Lawyers, an industry group, half of the family lawyers nationwide reported an increase in client interest in postnups during the last three years.

One thing driving this is undoubtedly the fact that marital agreements, in general, are less stigmatized. A generation ago, asking for a prenup (unless you were über-wealthy) was mildly scandalous. But don’t you love your betrothed?! Now, thanks largely to people marrying later in life—after they may own a business, a retirement fund, or even a home—prenups are mundane. Like buying travel insurance, it doesn’t mean you don’t love your vacation.

The median age of marriage now hovers in the late 20s—the highest it has ever been in U.S. history. In New York state, it’s even higher: 30.3 for men and 28.8 for women. There is, among people in their late twenties and early thirties, a perhaps natural tendency to view yourself and your partner as a fixed quantity—someone who has done all their growing up and arrived at stable adulthood. But that can be a dangerous assumption. Over decades of marriage, people and circumstances can change. Many people have had the uncomfortable experience of looking across the kitchen table at their spouse and wondering who, exactly, is the person they have married.

“By virtue of being married, you’ve already made a deal,” says Meghan Freed, a family law attorney who practices at Freed Marcroft in Hartford, Connecticut. “A lot of people don’t realize that, so there’s an understandable desire to lay it out, to express their shared understanding of what someone’s death or the end of the marriage would mean.” With marriage comes a kind of agreement by default—a set of responsibilities and rights already written into state law, such as the right to receive an equitable distribution of marital property in a divorce, or to receive spousal support. Post-nups are a way of changing the pre-sets of marriage to meet a couple’s individual needs and situation. This form of personalization may be appealing to today’s Millennials, who are reaching marriage age having grown up in a world where they could customize everything from their college major to the selection of media they consume to the lunch they order.

Let’s not forget, also, that Millennials witnessed a lot of divorces first-hand as kids, and most of them happened without a prenup or a postnup in place. Those divorces, however necessary, in most cases, did not take ten minutes and end with a hug. However naïvely, people in their twenties and early thirties today may see marital contracts as a way to foreclose the messiest, costliest, and saddest realities of divorce, by going over assets and potential issues of conflict proactively, together, and ideally well before nerves are frayed.

At least, that’s the idea.

Family lawyers say couples who seek postnups often fall into a few main categories. Many people create postnups to modify an existing prenup that, with the intervening years, has become outdated or even unfair. “You really do see postnups that say, ‘I’m scaling back. I’m giving you more. Because you have been so great,'” says Tom Kretchmar, a matrimonial lawyer at the Manhattan firm of Chemtob, Moss, and Forman.

If one spouse inherits property during a marriage, the couple may end up signing a postnup. For many family-owned private companies, postnups have long been a part of succession planning; each member of the next generation signs one before they get to inherit their share. Or a postnup may arise because of unexpected death in the family. Post-nups can be useful because, while inheritances are considered the inheriting spouse’s separate property by default, sometimes the way a couple mingles their money can expose any asset to “transmutation”—when something you own converts from separate property to marital property, or vice-versa. That beach cottage that’s been in your family for three generations is your separate property on the day you inherit it. But, without a postnup, as soon as you use the marital property to pay for the house’s upkeep—as soon as income earned during the marriage goes to pay the mortgage, or towards necessary repairs—some portion of that family cottage could be considered marital property in a divorce.

“Transmutation is not a binary thing,” says Kretchmar. “It’s a matter of whether a spouse has developed some claim to the asset. A year’s worth of contributing to mortgage payments, well, that doesn’t mean one spouse co-owns the house outright. But if it’s appreciated by $100,000 during that year, according to an appraisal, maybe they own part of that increase in value.” And if one spouse can’t afford to buy out the other’s share, the divorce might force the sale of that asset—a.k.a, wave goodbye to the cottage you were hoping to pass on to a fourth generation. “So instead,” says Kretchmar, “you sign an agreement that says, ‘I love you, I’m not trying to trick you out of anything, but this asset is going to remain separate property, not marital property.'”

Suzanna, who lives in Kansas and runs her own small business, signed a postnup with her husband five years into their marriage, after he inherited a surprise windfall upon the death of his father. It was an ownership stake in the business his father had spent his life building. With it came the responsibility to manage a number of valuable assets and investments in order to provide for not just Suzanna and their young son, but also his adult sisters and aging mother. The family asked Suzanna and her husband to sign a postnup.

“He kept saying, ‘Well, it would make my mom feel more comfortable,'” recalls Suzanna, who declined to give her last name for privacy reasons. Her husband’s family lawyer drafted an agreement. At the time, Suzanna was a college teacher and lacked the money to afford her own attorney. “They paid for my attorney. The attorney looked it over and said it was fine, nothing to be concerned about,” she remembers. In exchange for an agreement that the inherited business, and all future wealth that might arise from it, would not be considered marital property should they ever divorce, the postnup offered Suzanna a cash sum, paid out over a period of time. “I think it was $20,000 as sort of a ‘signing bonus,’ if you will,” she says. She used the money for credit card bills and household expenses.

When her husband’s family brought up the idea of the postnup, Suzanna had mixed feelings. “On the one hand, you know, it wasn’t my intention to take anything from him or impact the value of his inheritance negatively,” she says. At the same time, she couldn’t help but feel “like it was a vote of un-confidence, that they thought we were not a strong couple.” This feeling was compounded by Suzanna’s sense that, because she and her husband were married under Kansas’s common-law statutes—they had signed an affidavit of marriage upon the birth of their son — in her husband’s family’s eyes, “the fact that he and I had not married in a Catholic ceremony meant that it wasn’t ‘legitimate’ in their religious viewpoint.”

“But, you know, I guess I didn’t have a reason not to sign it,” Suzanna says. “And I felt like the fallout of not signing it would be pretty significant. I didn’t want it to become a relationship-ender. It wasn’t a point I was willing to sacrifice the relationship on. The relationship was important to me. So I signed it.”

Suzanna and her husband had met and fallen in love when “as he used to say, ‘I don’t even have a pot to piss in,” she recalls, laughing. His father’s death, and the sudden responsibility to the company, was a dramatic change—and Suzanna says it changed their marital dynamic. “My husband worked so hard to step into his father’s shoes, and not only protect those assets, but grow them in a way that would have made his father proud, and make sure his sisters weren’t disappointed in him,” she says. “To my perspective—and certainly it takes two, always—but to my perspective, our relationship bore the brunt of his singular focus on that endeavor. And whatever assets and wealth his family will enjoy in the future has been somewhat born out of the sacrifice of our relationship. He became so stressed, and such a workaholic, and so paranoid. It changed his personality. Losing his father and inheriting that company changed who he was.”

Suzanna and her husband are now legally separated and, though they are in therapy, divorce is on the table. She says part of her regrets signing the postnup. “If I’m being honest, I probably do. It’s not that I had dollar signs in my eyes when I met him,” she says. “But he’s able to provide our son with a different lifestyle, and the disparity is kind of an uncomfortable feeling.” Her business is, per the terms of their postnup, also not considered marital property. But it’s not as valuable as her husband’s company. And the “signing bonus” is long gone. “$20,000 may sound like a lot,” says Suzanna. “But in the scheme of multiple millions…”

When asked if there was anything she wishes she had done differently during the negotiation of the postnup, she says having “an emotional opinion” is important, perhaps just as important as an objective legal opinion. “If I could have, I would have loved to just call someone up who had a postnup and say, hey, did that come back to bite you in the butt? Did you feel like it was fair? And just hear a sort of more personal narrative about it. I think that would have been helpful information.”

Josh King, chief legal counsel for online legal marketplace Avvo, cautions that many postnups are signed in less-than-rosy circumstances. “These documents arise in almost every case in situations that are adversarial,” says King. “You’re not going to go home to your happy marriage and say, ‘Hey, I don’t have a lot to do tonight. Let’s negotiate a post-nuptial agreement.’ It’s almost always going to happen in a situation when something has gone wrong.”

Because the people negotiating the agreement are married—that is, already sharing assets, already endowed with certain legal rights, already sharing a home, and finances, and possibly children — negotiating a postnup is very different than other kinds of contracts. “If I’m negotiating commercial contracts, those are arm’s-length transactions,” says King. “If someone offers me terms I think are unfair, I’m going to say no. It’s business, and you can offer me fair terms, or I can do business with somebody else.” That’s not so with a postnup. The ultimate “leverage” a spouse has is divorce.

“If you’re inside of a marriage, and you’ve got one party pushing for a post-nuptial agreement, that is a very fraught negotiation,” says King, who remembers a close family member who was browbeaten into signing a postnup against his strong objections (and the advice of her own lawyer). “She was essentially badgered into doing it by the fact that she had her negotiating counter-party in her face, 24-7, pushing her into this agreement.” What happened? “Well, she and her husband are still married. I don’t think they’re that happy, but I suppose it’s working in that respect, in that they were very close to divorce and they’ve stayed together—and they have young children. But it was, economically, not a fair deal.”

While prenups have become very widely accepted in the U.S., postnups have some quirks. Differences in family law from state to the state mean that postnups differ in their enforceability depending on where a couple lives. Because postnups have traditionally been rare, some states just don’t have a lot of case law—the body of past decisions that govern how the law is interpreted and applied—on postnups. This means lawyers and couples seeking to enforce postnups are still finding the exact limits of what a postnup can and can’t do.

Courts in some states, like New Jersey, have ruled that a postnup must be “fair and just” to both spouses, both at the time the agreement is signed and at the time of divorce. But other states, including New York, require that a postnup not be “unconscionable.” In those states, mere unfairness is not on its own grounds for overturning a postnup. “Because it’s a contract between spouses, there is an expectation of good faith and fair dealing,” says Tom Kretchmar. This is because spouses have a fiduciary duty to each other. “But that certainly doesn’t mean you can’t enter into a postnup which is more favorable to one spouse or to be blunt, substantially more favorable to one spouse than the other.”

In California, postnups have wide acceptance when it comes to deciding what is marital and what is separate property—but not spousal support, which is the money sometimes paid by one spouse to another after a divorce. This is because support is seen as something for a court to decide in accordance with state law, says Los Angeles-based family law attorney Steve Mindel, a partner at Feinberg, Mindel, Brandt & Klein.

Meanwhile, a handful of states, including Ohio, don’t recognize post-nuptial agreements at all or recognize them only under extremely limited circumstances.

“There are absolutely idiosyncrasies and unique aspects to postnups in every state,” says Josh King, of Avvo. “Just like there are unique idiosyncrasies to family law in all its provisions in every state. There is a pretty consistent theme, though, that both parties have to be represented by counsel. If you’re a party that wants to put a postnup in place, you better make sure it’s really buttoned up—that you’ve got a schedule of assets, that you haven’t hidden anything, and that both parties are represented by counsel.”

“It’s interesting how frequently people—even people with quite a bit of money—will think that they can address these sorts of contracts without having counsel involved,” says Kretchmar. But a postnup is different from an ordinary contract. A lawyer will guide and advise you throughout the negotiation process and will help make sure your postnup will hold up under the laws of your state, for the sake of both spouses.

The failure to disclose assets, unconscionability, the presence of any coercion or duress, and any misconduct in how the agreement was reached (known legally as “overreaching”), can all invalidate a post-nuptial agreement. But there is so much case law on postnups in New York, says Kretchmar, that the standards for “duress” and “coercion” have become hard to meet. Proving to overreach is also rare. “You have crazy cases where that literally means somebody changed out pages in an agreement,” explains Kretchmar. “But that’s not commonplace.”

One thing that no marital agreement—whether a postnup or a prenup—can do is set child support or decide child custody after a divorce. “You can’t contract away your responsibilities vis-à-vis your children,” says Meghan Freed, the family law attorney. Support and custody are always up to a court to decide. A couple can, however, use a postnup to add to child support, for instance by agreeing that one spouse will be responsible for a set amount of the child’s tuition, or some other anticipated expense.

Sometimes couples sign a postnup after infidelity or a serious financial breach of trust — like one spouse with a secret gambling addiction betting away the couple’s wealth. In situations like those, a postnup can try to protect against future betrayals of trust by transferring ownership of assets to the wronged partner. “I call that the Beyoncé clause,” says Amy Saunders, a family law attorney practicing in Dedham, Massachusetts, a suburb of Boston. “Post-nuptial agreements provide tools that a court can’t. And maybe you need that in order to stay in a relationship. You need to know that there’s going to be a substantial reason not to cheat.”

The lawyers interviewed for this piece differed in their view of agreements entered into under such circumstances. “My experience is that those post-marital agreements rarely are successful,” says Steve Mindel, the Los Angeles attorney. “When somebody wants a post-marital agreement because of infidelity, it’s very hard to negotiate those documents because there’s no trust,” Mindel continued. “Most of the time, people in that situation, we would send them to a marital counselor first to see if they can get through their discord. And if they can get through their discord, a lot of times they don’t need the additional documentation.”

But Anita Chlipala, a Chicago-based relationship therapist who often counsels couples recovering from infidelity, says a postnup can help rebuild trust—along with therapy and a sincere effort to address the underlying issues that led to the cheating. “If one person doesn’t work, if they’re a stay-at-home parent, or they make considerably less than their partner, there’s a power differential there that a postnup can help address,” explains Chlipala. “They discover their spouse has cheated, and they just feel so powerless. They are so dependent, financially, on the person who hurt them the most. It can be very healing to them to have a post up where there is an agreed-upon financial plan put in place, so they feel more protected.”

The New York lawyer, Kretchmar, says you shouldn’t underestimate the power of a postnup to get a marriage back on track. “It’s pretty amazing how, once you’ve definitively resolved the financial issues and financial fighting that goes on between the parties, they find a way to refocus their attention on everything else.”

The last big category of people seeking postnups is relatively newly married couples who intended to sign a prenup and ran out of time. That describes Krista and Ben, who signed their postnup within their first year of marriage after initially planning to sign a prenup.

“We agreed on the desire for a nuptial agreement so strongly that it was like, ‘All right, that was easy, that’s done,'” says Ben. Using contract templates available on the website LawDepot, Krista wrote the first draft of a prenup. “But almost because it was so easy to agree, it became deprioritized,” Ben continues. Caught up in wedding planning and family life, they ran out of time to sign a prenup. So after their wedding, they changed their agreement to a postnup.

The couple is aware that the fact they created their postnup themselves, without lawyers, may make it vulnerable if either of them should ever challenge it in a divorce proceeding. “I feel pretty confident,” says Krista, “but that’s mainly based on knowing me and Ben. We’re not litigious.” If and when they modify their agreement, they’ll “definitely” hire lawyers, Krista says.

Ben and Krista didn’t find the process of negotiating and signing a postnup to be unromantic or transactional. “That notion—I don’t think it’s realistic,” Ben says. “I’ve seen marriages among my friends fall apart, my friends’ parents, all over the place. It’s not uncommon for people with the best intentions to split up. I’m not trying to pull any rosy-hued wool over my eyes.” He pauses. “I’ve been through tumultuous breakups, and I think a lot of people have been through tumultuous breakups that have changed their perceptions of love. We’re both in our 30s. We’re not getting caught up and swept off head over heels—although there was a certain amount of that early on. But as we began to land on our feet and walk together in our life, we were just being realistic. It’s like, who are we trying to kid?”

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Freed Marcroft LLC

Freed Marcroft LLC