If you’re trying to save your marriage then a post-nup could be exactly what you need. The communication that goes into creating a post-nuptial agreement has the potential to create meaningful and lasting change to your relationship. And if that change doesn’t last, then having an agreement could certainly make divorce easier.
Tom Gardiner is a Chicago-based attorney and author of The Post-Nup Solution: How To Save A Marriage In Crisis-or End It Fairly (available on Amazon). Gardiner has worked with many business partners and shareholders to create business agreements. These people spend hours just planning the future and thinking through the what-ifs. “But with the most important relationship, the spousal relationship, people don’t do that,” said Gardiner. “If corporate clients can do this, why can’t couples?”
That’s a good question. To find out more about what goes into a post-nup, how to create one and when not to even think about such an agreement, listen in to the Conversation below (email subscribers click here) or, if you prefer, keep reading.
A Post Nup Is A Contract
Almost everyone has heard of a pre-nup. It’s a formal agreement couples enter into prior to marriage that spells out how their assets will be divided in the event of the marriage ending. They’ve been around for years and are especially common with celebrities and people who have significant assets going into a marriage.
A post-nup is same concept except that a couple makes the agreement when they’re already married. They’ve been gaining favor over the last five years and like pre-nups, cover what happens to property and assets in the event of divorce however, Gardiner says they should cover more.
“My argument is that it should also cover conduct because it’s the conduct that often leads to divorce,” said Gardiner.
To create a post-nup couples have to communicate and the lack of honest, open communication is often a factor in marital problems. Gardiner believes that post-nuptial agreements could be used by divorce professionals such as coaches, therapists and attorneys to help their clients.
“I think one of the problems that therapists have is that they try to counsel people and there isn’t necessarily a result if the problem isn’t resolved,” said Gardiner.
In a post-nup agreement a couple would cover what the problems are, that they are committed to working on their marriage, what they propose to do to resolve the problems and what will happen if the problems are not resolved. It’s that last step that is often missing from marriage counseling.
It’s A Problem-Solving Approach
If you tell your spouse, you’d like a post-nup, they may scoff at you and part of that will be due to their pre-conceived ideas about such agreements and part ignorance about what the agreement really is about.
Gardiner however sees them as a positive approach to solving problems, one that allows couples to act earlier on their problems when they both want to find a solution. Too often, Gardiner says people seek help too late when the damage has already been done. And, because these agreements are crafted when both parties still want to work on the relationship, what is agreed to for the division of assets is going to be more equitable than what is likely in a divorce without such an agreement.
How Is Conduct Included?
Gardiner recommends included whatever conduct is causing problems in the marriage. The obvious examples would be gambling, drugs, alcohol and infidelity but an agreement could also include things like working hours and the division of household chores.
The agreement needs to cover that if xyz happens i.e. the triggering event, then this is the consequence. The consequence doesn’t have to be divorce. It could for example be that if one party chronically overspends on the household budget each month, then access to the credit card for that party may be suspended for an agreed period of time.
Gardiner stresses that the consequences should not be black and white because it’s impossible to foresee all the circumstances that might lead to a triggering event. So it might read more like, ‘if this happens, then we will do this and we may decide to end our marriage.’
“Some of these problems are very difficult and so the other spouse needs to be reasonable about the goal.” said Gardiner. “You can have the flexibility in the agreement to account for human nature and the seriousness of the problem.”
The key however is that if you do end up deciding to end your marriage, then the post-nuptial agreement already spells out your agreement on what is and what is not marital property and then how the marital property is to be divided.
“The distinction here is that when the split up occurs, you have an agreement that was made when the couple wanted to maintain their marriage,” said Gardiner. “There’s a reasonableness part that occurs that doesn’t occur when the break up happens.”
Post-Nups Are Not For Every Situation
Gardiner doesn’t recommend trying to create a post-nuptial agreement when there is abuse or criminal behavior. In both of these situations the conduct is not likely to improve voluntarily or without significant professional help and most likely, there is an imbalance of power that precludes good faith negotiations.
“If someone is in an abusive marriage, they’re getting battered, they getting harmed, they’re psychologically abused, they can’t function, these are not remediable,” said Gardiner. “There has to be a strong possibility of healing to make the relationship healthier.”
You Can Include Your Parenting Commitments
A post-nup is not going to be a substitute for a parenting plan in the event that the marriage does end. While you might agree that it would be your intention to have 50/50 shared parenting, what that schedule would look like would need to be addressed at the time. And, if there were circumstances that indicated that parenting time should be restricted, the court is not going to treat those provisions of a post-nuptial agreement as binding.
That being said, Gardiner still suggests capturing in the agreement behaviors and conducts that might influence a parenting plan, such as one party admitting that they were high when they had the car accident with the children in the car.
Gardiner also suggests including commitments such as which activities the children will participate in and cost sharing, especially if the activities are particularly expensive or have been a source of disagreement.
Religion is another area to consider. For example, in a mixed faith marriage, one party may agree verbally that the children are to be raised in the faith of the other spouse and not their own. This is something you might want stated in your post-nuptial agreement because verbal agreements are always hard to prove in court.
Before you sign a post-nuptial agreement, it’s important that there’s been full disclosure about the finances about the marriage and the accounts that each party has. This is akin to going through the financial disclosure process that’s part of a legal divorce.
You can’t make a decision about how a particular asset should be divided unless you know the full picture. For example, you shouldn’t be agreeing that each party retains their own retirement assets unless you know the value of each other’s accounts. You shouldn’t be agreeing to how to share the house equity without knowing the total value of the marital estate.
It would also be helpful to understand how the marital property would get divided if you were to get divorced. This allows you to make an informed decision and creates the basis for an equitable agreement.
“Things have to be fair,” said Gardiner. “They can’t be one party gives up everything and the other party gives up nothing because the judge is going to look at it and say something was wrong about this.”
Have The Agreement Reviewed By An Attorney
One of the purposes of a post-nuptial agreement is to spell out how the agreed marital property is to be divided in divorce and as part of that process it will be reviewed by a judge.
Gardiner’s book, The Post-Nup Solution: How To Save A Marriage-Or End It Fairly, provides some examples of agreements that can be used as a starting point however, to ensure that the agreement is enforceable by a court, Gardiner recommends getting your draft reviewed by a family law attorney where you live since there are dramatic local differences in what courts find acceptable.
“A post-nuptial agreement can always be challenged in Court,” said Gardiner, “but it’s like a settlement agreement. The judge is going to look at it like any other contract. Was it fair when it was entered into?”
Keep It Updated
As with most agreements, a post-nuptial agreement should be reviewed periodically and updated. This is especially true when there are significant life events such as the birth of a child, a new home, new job, or the decision for one parent to stay home.
Just as with the original agreement, going through the agreement to update it for changes promotes communication and encourages couples to talk through the financial consequences of their decisions and this aspect is often overlooked or taken for granted.
Tom Gardiner is a Chicago-based attorney and author of The Post-Nup Solution: How To Save A Marriage In Crisis-or End It Fairly (available on Amazon).