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How (and Why) to Bring Up a Postnup

Most people have heard about prenuptial agreements, but far fewer are familiar with postnuptial agreements. Even if you have been married for many years, it's never too late to enter into an agreement that promotes domestic harmony and protects your union. In fact, veteran lawyers say the number of mid-marriage agreements has exploded in the past five years, perhaps as much as tenfold. There are many negative connotations attached to the world "postnup," as if it is admitting your relationship's defeat. It is less intimidating to look at the process as a communication tool and a "seatbelt" for your relationship in the case of death or divorce.

Why?

Bringing up the subject of a postnuptial agreement can be a great way to resolve underlying financial and communication issues that could be causing undue stress in your marriage. By opening up this line of discussion, you are well on your way to solving festering problems, which could strengthen your marriage. Here are a few reasons why a postnup (also referred to as post marriage agreements or simply marriage contracts) may be beneficial for your partnership:

  • You may have overlooked a prenuptial agreement and want to legally define your relationship in an agreement. Many couples got married in a time and place where discussion of marriage contracts was discouraged. Today this process is more common.
  • Most state's laws applying to property distribution in the case of death and divorce are vague. The most responsible way to manage your partnership is to take control and make your own decisions.
  • You may want to amend a prenuptial agreement you signed before marriage.
  • Your financial circumstances change through inheritance, receipt stock options, sale of a business, etc.
  • Perhaps one, or both of you, began your own business.
  • One of you has children from a previous marriage that you want to allocate funds or property to.
  • You or your spouse has an emotional need for security.
  • Creating a postnuptial agreement can be used for reconciliation purposes (if you have had marital difficulties and decide to "give it another shot," a postnup can be used as a security blanket).

When?

Every couple should at least discuss the concept of a postnup. This process isn't limited to times of transition in your relationship. Create a deadline for yourself and commit to initiating a conversation about marriage contracts by that date. Make sure you set aside time for this discussion when you can both focus and there aren't other forms of tension or distraction lingering.

Where?

Where do you normally discuss topics important to your partnership, such as life goals, finances or family? Find or create a calm, neutral spot where you both will feel open, at ease and unpressured. Whether you're sitting on your living room sofa, taking an afternoon walk or having a quiet dinner, you'll want to create an environment where both of you are most comfortable - mentally and physically.

How?

Bringing up the topic of a postnuptial agreement can be a very sensitive subject, especially if the other person's automatic reaction is to think "divorce." It is obviously easier to bring up the topic if you already have a prenup in place, since the postnup is just a natural extension of that document. If you haven't discussed marriage contracts before, proceed as delicately as possible. Here are a few suggestions to get you started:

  • Approach the topic from a collaborative viewpoint. For example, if you or your spouse are a stay at home parent, focus on the need to address your respective contributions to the relationship.
  • State your concerns in a straightforward fashion. Be sure to solicit your spouse's input and feedback.
  • You should remain open-minded and be prepared to make compromises in the negotiation.
  • A change of circumstances (financial or lifestyle) can present a good opportunity to bring up a postnup.
  • Your attorney or financial planner could raise the issue in conjunction with your overall financial planning.

Conversation Starters:

"I believe that ours is an equal partnership and recently discovered the laws in our state don't reflect this philosophy. Maybe we should talk about creating a more personalized agreement about our marriage."

"Now that I've quit my job to be a stay at home spouse, I feel that we need to discuss my value or worth in the relationship."

"Now that I've inherited the family business, I'm concerned about what would happen in the case of death or even divorce. I need to be confident that the business stays in the family."

"It's been awhile since we have discussed the financial status of our relationship. Can we set aside some time to really talk about money matters and discuss the option of creating a marriage agreement?"

The Commitment Conversation: A useful guide to help you create your agreement.

In an effort to help individuals and couples feel more comfortable in discussing the issues surrounding a postnup, we've created a guidebook called "The Commitment Conversation". Perhaps you or someone you know could use this incredibly supportive tool.

Important Note:

Even though postnups often serve the same purpose as prenups, some courts scrutinize postnups more carefully than prenups, sometimes holding them to a higher standard of fairness on the theory that the parties have less leverage in postnups than in prenups. Unlike prenups, there is no uniform act that applies to postnups. The general rule in this quickly emerging area, however, is to apply the same rules for all marriage contracts. Both you and your spouse should be represented by separate, independent counsel, who will advise you of any distinctions particular to your situation or where you live. In addition, you must provide full financial disclosure to each other.

REMEMBER: Don't let a postnup fall to the bottom of your "to do" list. The discussions ignited through the process generally come up eventually. Getting to know your partner's position now on important issues can help head-off more difficult discussions during the marriage. If you can't talk about touchy matters, this is a warning sign that your marriage is in need of help.

The foregoing is a brief outline of the chapter on "Internups: Just Between Us Married Folk" in PRENUPS FOR LOVERS by Arlene G. Dubin (Villard Books, a division of Random House, Inc., 2001). The chapter deals with why a postnup agreement may be good for you, and provides numerous examples of couples who have benefited, the legal implications of entering into a contract and how to bring up the topic.

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How (and why) to Bring Up a Postnup
 
Creating A Postnuptial Agreement
 
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