Are Post-Nuptial Agreements a Good Idea For You?


We have all heard of the fear and loathing associated with Pre- Nuptial, or pre-marital, agreements.  Accusations by the greedy and suspicious families of the newly-engaged can lead the love-struck straight to lawyers’ offices.  Innocence dashed on the rocks of such concepts as “gold digger,” “mercenary,” and worse.  Long before anyone has a chance to prove their own best (or worst) intentions, they are made to feel defensive and alone in the company of someone they love.

(As an aside, I have written plenty of pre-nuptial agreements, and not one of them has ever fit those stereotypes.)

The post-nuptial (or during-the-marriage) agreement, however, is written once people have let their guard down and become who they actually are within the marriage.  When we no longer suck in our guts; or make sure the eye make-up is on before breakfast.  Post-nuptial agreements are rarely the one-sided defense mechanism of the trust-funders.

If a pre-nuptial agreement can be seen as someone’s attempt at preventing an unwanted marriage, then the “post-nup” could best be described as someone trying to prevent an unwanted divorce.

While nowhere near as romantic as a renewal of vows; it really does play along similar lines. Sometimes the simple act of writing down what both partners do and do not want in their marriage is enough to help them keep their intentions focused.

So, what is a post-nuptial agreement, why would you want one, and how do you get one?    Examples of when people may decide to pursue a post-nup are if there has been an affair, an unwanted pregnancy (or an inability to carry a child to term), a bankruptcy or foreclosure, a significant inheritance, a drug or alcohol problem, or any other unexpected change in the direction of the marital relationship, the post-nup is a tool to help the parties talk about how they want to handle the new situation together as a team.  Circumstances which might otherwise destroy or end a marriage can be used to the spouses’ advantage as a way to strengthen their partnership.

The parties may use a therapist or other counselor to help them work through the emotional aspects of their situation, or their lawyer/mediator.  Once the major questions are answered (are we staying married? Are we trying again to: have children/get sober/ adopt/ buy a house…) then the lawyer can help formalize the agreement into a binding document with objectives and consideration and consequences with which both parties are willing to live.

Just as no two business partners should go into a new venture without a written understanding of the expectations between them, a formal written agreement between spouses helps to alleviate some of the guess work and anxiety of an unknowable future.

What We Love:  Pre-nups and Post-nups are both ultimately just communication tools between spouses, and no one needs more communication than spouses!

Published by Sharon Oberst DeFala

Sharon Oberst DeFala has practiced low-impact safe divorce since 1992.

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