Your Divorce-Proof Post-Nup

While prenuptial agreements often receive the spotlight, postnuptial agreements have quietly emerged as powerful tools. Signed during the marriage, and not before, as with the case of a prenuptial agreement, postnuptial agreements are marital contracts that seek to protect the financial future or stabilize a marriage in transition. Rather than anticipating failure, post-nup agreements aim to strengthen the foundation of a marriage by promoting transparency, fairness, and peace of mind.

While no document is divorce-proof and therefore cannot guarantee a marriage’s longevity, a well-drafted postnuptial agreement can lay the groundwork for marital stability by clarifying financial arrangements, fostering open communication, and adapting to the changing circumstances of a marriage.

An agreement that aims to be divorce-proof does not just prepare for the worst; it actively promotes the best outcomes within the marriage.

When sitting down with an attorney to discuss drafting a postnuptial agreement, consider the following important factors.

The Purpose: Why Do You Want This Agreement?

One of the first and most crucial questions an attorney will ask is why you are seeking a postnuptial agreement.

• Is it to address financial imbalance? 
• To revise a prior prenuptial agreement? 
• To protect newly created business interests 
• Or to protect a newly received inheritance? 
• To provide reassurance to a concerned spouse? 
• Is it a part of estate planning?

Identifying the motivation helps shape the framework of a postnuptial agreement and allows your attorney to include the proper provisions to achieve your goals. It also serves to reduce back and forth between the spouses, which limits legal fees.

The Need for Full Financial Disclosure

A central pillar of any postnuptial agreement is transparency.

Your lawyer should insist that both parties exchange complete and honest financial disclosures. This includes all assets and liabilities, income sources, business interests, real estate, and retirement accounts.

While it may seem like a spouse may have a complete understanding of the financial picture, there are many instances in which one spouse is in the dark. This may be the case not because the other spouse is nefarious, but instead because the couple had different roles in the marriage, thus leading to a hands-off financial approach for one.

Full financial disclosure not only helps your postnuptial agreement withstand a challenge, but also ensures both spouses understand the financial realities of their marriage.

What other documents might you benefit from understanding? Check out our post on what’s the difference between a divorce decree and a divorce certificate?

Custom Clauses That Promote Marital Security

Your lawyer should counsel you as to what types of clauses can (and cannot) be included in postnuptial agreements.

One feature that makes a postnuptial agreement help a couple to feel divorce-proof is how tailored it can be to a couple’s specific needs.

A lawyer meeting with a client thinking about drafting a postnuptial agreement should advise the client on creative, relationship-specific clauses. For example, clauses related to child custody and child support (at least in New York State) are not included in postnuptial agreements. However, provisions discussing newly acquired business interests, including those that include “ladder clauses”, where the spouse who is not working in the business receives a greater interest based upon how long the parties have been married, may be used.

Specific clauses can be included that help to compensate a spouse for money resulting from their partner’s gambling losses. The agreement can also include sunset clauses, which serve to terminate the agreement after a certain number of years. Other practical provisions, such as stating that in the event of a divorce, one spouse will not be forced to vacate the marital home until a parenting plan is in place, can help encourage cooperation between the parties.

Including these types of clauses in postnuptial agreements is less about thinking about divorce, or planning for it; instead, it is about reinforcing the partnership by clearly stating the rights and obligations each spouse has from a financial perspective.

Discussing Enforceability

Postnuptial agreements that are particularly unfair may not withstand a challenge upon a divorce.

Attorneys must walk clients through “enforceability” and what this means in their particular U.S. state, and advise them on how future circumstances could lead to a challenge of the agreement.

If you’re next step is to consult with an attorney, you’ll want to check out our post on how to find a good divorce lawyer.

To maximize the likelihood that the postnuptial agreement is enforced, it is helpful to:

• avoid overly one-sided terms
• consider adding terms that increase benefits for the spouse who earns less over time
• and that may allow for a reevaluation of the agreement periodically if circumstances change

At its best, a postnuptial agreement is not about planning for failure; it is about investing in the stability of the marriage.

An agreement that strives to be a divorce-proof postnuptial agreement seeks to remove financial uncertainty, build trust, and give both spouses peace of mind. Clear communication to and from your attorney will help those considering a postnuptial agreement to navigate these discussions with both legal precision and emotional intelligence.

When drafted properly, a postnuptial becomes more than just a document; it becomes the foundation for a healthier, more sustainable marriage.

NOTES

Ian Steinberg, a Matrimonial Attorney at Berkman Bottger Newman & Schein, LLP, focuses on negotiation, mediation, litigation, and settlement of matrimonial and family law cases. He also specializes in the drafting of prenuptial and postnuptial agreements.

You can reach out to Ian by email at isteinberg@berkbot.com, via his LinkedIn, or on his firm’s website.

 

Choose not to go it alone.

Since 2012, smart women around the world have chosen SAS for Women to partner with them through the emotional and oftentimes complicated experience of understanding their life choices.

Schedule your FREE 15-minute consultation with SAS now.