Can Prenups and Postnups Prevent Conflict or a Contentious Divorce?

You can’t predict the future. The hard truth is that the way you feel about your partner today may not be the way you feel (and vice versa) as life evolves. Marriage is wonderful. Marriage is also difficult. That’s why we believe it’s so important to hold level-headed discussions right now – when you’re sitting on the same side of the table and both truly want what’s best for each other – regarding what might happen if your feelings happen to change in the future.

Enter the prenuptial agreement (prenup)

If you’re getting married or re-married in the near future, we believe you should think seriously about a prenup. Money and communication problems can be strong precursors to divorce. While it’s important to protect each spouse, we believe the best reason to enter into a prenuptial/premarital agreement is to foster healthy communication about your finances right from the beginning, in order to help prevent going through a divorce in the end.

A prenup is a legal contract entered into prior to marriage. The content of a prenuptial agreement can vary widely, but it commonly includes provisions for spousal support and division of assets in the event of divorce. This type of agreement works well regardless of if this is your first or fifth marriage. And it’s not only for the rich and famous, because everyone has something worth protecting. Prenups can give guidance as to what happens to property, debt, future inheritances and earnings. Although there are ways to keep assets separate without prenuptial agreements, the marital waters could get really muddy, really fast. While couples preparing to walk down the aisle likely have no intention of ever divorcing, statistics unfortunately tell us divorce is a stark reality for many couples.

Common issues that prenups can address

• Ownership and use of property upon divorce
• Division of assets in divorce
• Allocation of debt upon divorce
• Amount and duration of maintenance/alimony payments upon divorce
• Obligations to create a trust or will to address the distribution of assets on death
• Which state's law will apply to the agreement in case of a disagreement

A prenup cannot address the allocation of parental responsibilities, parenting time or amount of child support that will be paid, as the right to receive child support belongs to the child, and parenting decisions must be based on the best interest of any children at the time of a divorce. But several other financial aspects can be covered by a prenup. It’s important to know that spouses may amend or revoke their prenuptial agreement at any time after they are married. It’s also important to understand that prenups are not guaranteed to be enforced and may be discarded by the courts if they are signed under duress or don’t meet certain requirements. Therefore, it’s critical to have an experienced attorney draft them.

A postnuptial agreement (postnup) might even save a marriage

What happens if you’re already married? Are you out of luck? No – definitely not! You and your spouse can enter into a postnup. A postnup is an effective way to document intentions for earnings and assets during the marriage, as well as in the event of a future divorce. Postnups are typically used either early in the marriage when the couple didn’t have time to finalize a prenup before the wedding, or perhaps five years or more into a marriage when the couple is aware of issues that threaten their relationship, and they want to gain clarity on areas of conflict. As some of you may be aware, this is evident, for example, when looking at the divorce proceedings of Matt Lauer and Annette Roque. Lauer and Roque appeared to have a relatively drama-free divorce largely because of the couple’s postnup. Given the explosive allegations and public downfall of Lauer, their divorce had the potential to be brutal, but the majority of the financial negotiations were addressed in the postnup, which was signed several years after their marriage. Having a legally binding document in place allowed them to keep their divorce relatively private and proceed rather smoothly and amicably.

Protecting your love and yourself – that’s a good thing

Prenups and postnups are often maligned and get a bad rap because they appear to assume that a divorce is inevitable. The likely reality is they are simply misunderstood. We believe they’re a wonderful way to protect each other from potentially making decisions in the future that derive from a place of anger and resentment. When you’re fully in love, it is challenging to think about what would happen if that love subsided or vanished completely. The flip side of that coin is when you plan for possible scenarios in the future and everyone is protected, it can create more certainty and peace of mind. People and emotions naturally evolve over time. If you and your spouse evolve in the same manner and can work together to create a happy medium, you will not need to implement your prenup or postnup. Just like buying homeowner’s insurance to protect you financially if your house burns down, you hope you’ll never need it – but will be glad if you do.

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