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Is A Postnuptial Agreement Right for You?

Is A Postnuptial Agreement Right for You?

The statistics are sobering---approximately half of all marriages are projected to end in divorce.  No one starting out in a new marriage wants to think it could happen to them.  But stay married long enough, and even the strongest of couples is likely to experience challenges.  What if there were something you could do to ease the pain of hard times in your marriage or even the pain of divorce itself?  Or better yet, what if you could get your marriage back on track and avoid divorce altogether?  What can you and your spouse do before your marriage experiences hard times, or even after?

A postnuptial agreement may help. 

  • What’s the difference between a prenup and a postnup?

Like its better-known counterpart the prenuptial agreement (colloquially known as a “prenup”), a postnuptial agreement, or “postnup,” is an agreement in which a couple decides, together, how to divide their assets and liabilities in the event of divorce or death.  Both types of agreements depend on both parties’ full disclosure of their finances, prior to execution, in order to be enforceable. 

But there are also some important differences between prenups and postnups.  Unlike a prenup, a postnup is executed after marriage, in some cases many years after marriage.  Thus, a postnup divides up assets that may have been acquired during the marriage or may have increased in value during the marriage.  And because the law recognizes the contribution of both partners to any value added during a marriage, couples negotiating a postnup start the process with the understanding that what was built during the marriage was built by both of them.

  • How can a postnup benefit you and your family?

A postnup can offer couples the certainty of knowing that, no matter what, both spouses will always be protected, financially and otherwise.  If you and your spouse ultimately decide to divorce, a postnup can minimize the potential for conflict and allow you and your family to move forward quickly and with peace of mind.  Because the purpose of a postnup is to allow couples to determine for themselves, ahead of time, how assets will be divided if the parties choose divorce, a fully-litigated divorce can be avoided.  That allows the parties to focus on moving their family forward.  Lengthy and expensive litigation can be kept to a minimum, and contested hearings before a judge--or even a trial before a jury—can be avoided altogether. A postnup allows you to consciously spare yourself and your family the financially and emotionally draining experience of a contentious divorce. 

  • When should I think about a postnup?

Couples should think about a postnup whenever they navigate a major life event. All marriages endure rough patches. Even the most loving of couples sometimes have arguments that go nuclear. Two people will not see eye-to-eye on every issue they confront in a marriage. Sometimes couples grow apart as they raise their children and find they need to rebuild their relationship once they are empty-nesters. Sometimes couples have difficulty navigating their relationship through the retirement of one or both spouses. Sometimes one spouse, or both, experiences a midlife crisis that introduces financial strain or infidelity to the mix. Not every problem in a marriage is a divorceable offense. Often, couples want to find a way to work through whatever problem has arisen, and negotiating a postnup can be useful in rekindling intimacy in the marriage.

A postnup helps couples stay together by easing the pressure of marital conflict.  It can facilitate conversations about pressing or potential financial issues.  It can promote intimacy through structured conversations about delicate topics. It can rebuild trust between spouses. The postnup is both a symbolic and literal recommitment by both spouses to the marriage and to each other. 

If your marriage has hit the skids, there is no reason to think divorce is your only option – in the postnup, there is hope for a renewed, stronger relationship with your spouse.

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