The prenup isn't your only shot at negotiating terms for a fair split down the line.
You’re married, congrats! If you skipped the whole prenuptial agreement phase of engagement, it's possible that you've been cruising through your newlywed days without ever giving a second thought to what might happen if you ever (gasp) get a divorce. After all, you’re feeling pretty good about things.
But with high-profile celeb divorces in the news (Chris Pratt and Anna Faris, Fergie and Josh Duhamel, we're looking at you) and perhaps friends—who you thought were solid—splitting, at some point you may start to think: Could it happen to me?
And that’s where the postnuptial agreement comes in. Because, as you’ve heard, even the most well-meaning divorces can turn nasty. What's a post-nup exactly? At its core, it’s just like a prenuptial agreement. “This is a written contractual agreement spouses enter into to define what will happen in the event of a divorce or separation. It lays out what both people can expect in the future, and helps avoid future conflict,” says Kevyn Noonan Hayes, a family and divorce attorney in Naples, Florida. (Depending on your state, you’ll need to be married or in a civil union to enter into a postnup.)
Since you didn’t get a prenup, a postnup may be your best bet in protecting yourself. Half of divorce attorneys said that the rate of postnups have increased in the past three years, according to a 2015 survey members of the American Academy of Matrimonial Lawyers.
Not sure if a postnup is for you? Here's a few reasons why you may consider getting one:
You’ve got kids from another marriage: If you have a child outside of the marriage and you’d like to define expectations for what that child may receive from that particular parent, you may consider a postnup, says Noonan Hayes. “Even when you have kids of your own, a postnup lets you lay out a parenting plan when you don’t want the prospect of fighting over custody,” she adds.
To protect your assets: If you want to avoid a knock-down, drag-out divorce, a postnup can lay out the groundwork so you don’t have to deal with the headache of splitting things up. You can determine who would take on various assets and debt. However, it must be fair and agreed upon by both people.
One spouse is in trouble: Let’s say your spouse develops a drug addiction, has a gambling problem, or got arrested for embezzling money at work. You obviously don’t want to be on the hook for the money they're losing gambling. In that event, both spouses can enter into a postnup, says Noonan Hayes, but you both have to be in agreement about it. This isn’t something you can just hire a lawyer to draw up for you and then—poof!—you’re protected. Your spouse has to want it, too.
If you’re thinking about a postnup, know it’s not for everyone. First, consider how much you and your spouse each make. If you bring in less than him, Noonan Hayes doesn’t suggest getting a postnup. “You don’t want to potentially settle for less than you could have gotten in a divorce,” she says.
If you and your spouse are young and just starting out—and you’re saying to yourself, hey we barely have anything, ha!—you probably don’t need to worry about a pre or postnup, either. “You’d potentially give up what you could gain from that marriage,” says Noonan Hayes.
However, maybe you’re killing it at your job and are the breadwinner of the fam, then a prenup is your best bet to protect your earnings. That said, “if you didn’t consider it before marriage, are on a business track to make more money as a woman, and depending on your spouse’s situation, then you may think about a postnup,” adds Noonan Hayes. What’s more, if you work a busy job and are worried that your husband would be awarded custody of children in the event of a split, you can draw up the documents to agree to a 50/50 custody arrangement right now.
Since a postnup needs to be fair to both people, Noonan Hayes recommends that both you and your spouse hire separate attorneys so that you’re fully aware of what you’re agreeing to, as well as how it may affect your future.
It may also help to include a clause about why you’re drafting one up, which can help the courts understand the motive, should the postnup need to be put in play. “Is the reason child custody? Is one spouse in trouble? If there’s ever an issue with the validity of the document, the court could look back on this statement,” says Noonan Hayes.
“It’s hard to think about the marriage not working out, but the postnup is there just in case,” adds Noonan Hayes. Besides, hopefully you’ll never need it, right?
Sex & Relationships: What is a postnuptial agreement, and do I need one?
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