Why More Couples Are Signing Postnuptial Agreements
He cheats. She wants a divorce. He pleads for forgiveness. She’ll stay, for a price: If they ever do divorce, she wants the house, the car, and a hefty slice of their other assets.
That kind of deal is possible with a postnuptial agreement, a legal contract between spouses who intend to stay together on what happens if their marriage ends. Also known as a postmarital agreement, it’s an increasingly popular variant of the prenuptial agreements that engaged couples have been signing for decades. 1
Couples often have very different reasons for signing postnups than prenups. And because postnups are newer and less common, it’s harder to predict whether courts will enforce one.
Divorce attorney Linda Ravdin, a partner at Pasternak & Fidis in Bethesda, Md., is one of the leading experts in the U.S. on both prenups and postnups. She's written books on the topic for the American Bar Association and for Bloomberg BNA Tax & Accounting.
“Every state recognizes the validity of premarital agreements,” Ravdin said. People often assume it’s easy to get divorce courts to ignore a prenup, but that’s a myth. Prenups do get challenged often, but “they hardly ever get thrown out,” she said.
Postnups are on shakier ground. Some states have clear rules; elsewhere, laws and court precedents are vague. When you draw up a postnup, then, “be careful,” Ravdin said. “You should do it right.” Even with the best legal advice, there’s often uncertainty whether, and how, a postnup will be upheld.
They're treated differently because they have a different history. For thousands of years, marrying couples—or, usually, their families—made deals before weddings, exchanging property and settling other rights and obligations. Those ancient premarital agreements addressed life after death, not divorce. Then, in the last 50 years, 2 it started to become possible in the U.S. to enforce a prenup with both spouses still alive.
Postmarital agreements have a shorter history. Blame sexism. Until the 20th century, wives didn’t have the legal power to sign a postnup. “They were legally incompetent to enter a contract with their husband,” Ravdin said. Those laws are gone, but state legislatures changed them gradually, in various ways. Some states explicitly allow postnups. Others haven’t weighed in, or else have quirky rules about, say, alimony. In 2012, experts proposed a more standard approach, the Uniform Premarital and Marital Agreements Act, but it's been enacted in only two states, Colorado and North Dakota.
Still, postnups are getting more popular. Half of the members of the American Academy of Matrimonial Lawyers said in a survey in late 2015 that they were being asked to write more postnups. Just 2 percent said they were handling fewer.
There are two common reasons why couples come to Ravdin looking for a postnup, she said. Sometimes they just run out of time before their weddings to get a regular prenup and seek a postnup instead—obviously a mistake, given how much harder postnups are to enforce. The other common reason, she said: “A couple is estranged, but they’re willing to take a chance on a reconciliation.”
Sometimes the problem is adultery or some other malfeasance. Couples may even be living separately but want to work out some way they can stay married—for the kids, or just to avoid the hassle of a messy divorce. The agreement, Ravdin said, is essentially: "'If this doesn’t work out, and we split up, here’s what our rights and obligations are going to be at that point.'"
If one spouse feels wronged, and the other feels guilty, that can give one side an advantage in negotiations. Then again, Ravdin said, “if you drive too hard a bargain, then quite often you end up in court anyway." Divorce court judges are rarely as offended by adultery as married people assume they will be.
Do postnups actually keep couples together? They do seem to occasionally, Ravdin said, but “sometimes, it’s a stop on the way to divorce in a few years.”
Even if a postnup only delays an eventual divorce, it can still be worthwhile if a messy, expensive divorce is averted. It gives couples a chance to work out a fair deal while they’re still sort of getting along—and it’s much better than negotiating after a marriage has irrevocably ended, Ravdin said. By then, couples “can end up spending a ton of money just because they’re mad at each other.”