Does Your Marriage Need A Postnup?

Postnuptial agreements can help ease tension as couples' fortunes changeand keep them out of divorce court

Romance must often defer to pragmatism in marriage, given how fraught an intimate partnership can be. How else do you explain the prenuptial agreement? Now for couples who have already tied the knot there is another way to make explicit the financial (and other) terms of your union: the postnup.

These contracts are a way to sort out money problems when, for any number of reasons (inheritances, business failures, business successes, winning the lottery, quitting work), there is more or less of it than there used to be. It has become a popular way to deal with the conflicting obligations that arise in blended families.

It's possible to think of such an agreement as part of more conventional financial or estate planning. Or as a blueprint, created in calmer times, for an eventual divorce settlement. It can also be used, though most lawyers don't recommend doing so, to solve the everyday tensions of married life: how often to visit the in-laws or take vacations or do household chores. "People can use this process very flexibly for all kinds of purposes, to revive a marriage or steer it in a different direction," says John Fiske, a Cambridge (Mass.) attorney and family mediator. "You can use postnups to force your marriage to work."

Fiske, who has been writing these contracts for the past eight years and is one of their biggest proponents, has experience with all kinds of, shall we say, creative clauses. One husband gave his wife $100,000 (tax-free) to acknowledge her worth. Another couple agreed to split up their considerable estate, which was all in the husband's name, and allow each to invest, spend, or give it away as they wished. If they divorce, each keeps what they have. When it came to one business in particular, the wife proposed that her husband receive more than half because he had worked extremely hard to build it up. He was so appreciative that he decided to pay her $50,000 in "marital alimony" every year on her birthday.

Arlene G. Dubin, a New York attorney and author of Prenups for Lovers, suggests thinking about postnups as a way to "take the law into your own hands," especially when it comes to estate planning. There are other ways to interpret her direction, though. "People ask for bad boy/bad girl clauses: If the husband or wife has an affair, drinks, smokes, gains weight, they get more or less money during the marriage," she says. "I try to discourage that. These are unenforceable. People should talk about these issues. But they should put their agreements in a letter, not in a legal document."

Postnups, like prenups, aren't everybody's idea of problem solving. Skeptics say even mentioning a marital contract is asking for trouble. "How do you sit down with your spouse and say, I just got a bonus and I'd like to keep it all. Can we sign an agreement?'" says Sharyn T. Sohoo, a divorce attorney. "Who's going to feel good about that? It's kind of tacky."

For some of those in enough distress to contemplate divorce, though, a contract that resolves specific disagreements can do wonders. Janice and Tom (both pseudonyms) had been married for three decades when, in 2000, trouble crept into their relationship. Tom's consulting business was faltering, and he fell into a depression, for which he sought therapy and took medication. They refinanced their home three months before they could have paid off the mortgage. Tom incurred credit-card debt to keep his business going and to pay his share of the household expenses (including their daughter's college tuition).

Janice, a professional whose income had always exceeded her husband's, worried about losing their home. They fought all the time. "We were both scared and mad at each other," says Tom. "We were in a death spiral. It was nightmarish." Says Janice: "My security was being eroded. But I wanted to divorce his financial problems, not him."

A TURNAROUND

In the Spring of 2006, they sought out an attorney who had written postnuptial contracts before. He asked what each wanted: Janice said she expected a reasonable amount of financial security; Tom needed emotional support. The lawyer suggested they give Janice sole ownership of the house, a change they didn't know was possible. The other details of their financial life would remain mostly the same.

When they each consulted their own lawyers, Tom's was skeptical: What if Janice got their home and kicked him out? "I thought I should give it to her because it really was my problem that caused this," Tom recalls saying. His lawyer replied: "In a divorce court, it wouldn't be." But Tom went ahead. "When we signed the house over to her, everything turned around," he says. "It was the best thing I ever did." Janice says: "Now I'm happy to see him. I feel freed up. It was a tough experience, but exhilarating."

Couples often become enthusiastic about postnuptial agreements after contemplating the unpleasant economic realities of divorce. Louise (a pseudonym) and her husband, a businessman, also are contending with financial problems serious enough to tear apart their 30-year marriage. Money quarrels that had been frustrating before turned troubling in January. She puts it bluntly: "My husband and I totally don't agree at all about money.... The sh-t hit the fan when he had a breakdown, spent a lot, took from our savings to pay off his credit-card bills, and ended up in the hospital [for psychological treatment]. I said If you want to stay married, you have to find a way to make me feel safe.'"

At the suggestion of their marriage counselor, they recently spoke to a lawyer about a postnup. They're negotiating both a marriage contract and a divorce settlement. "Hopefully, we'll be able to work out a marriage," Louise says. "I really think this is revolutionary. I feel buoyed. But talk to me again in two months."

By Susan Berfield

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