Thinking about divorce? You wouldn’t be alone this year – what with the pandemic causing divorces to spike (opens in new tab) – or any year, as many couples opt to start the next 12 months fresh by splitting up.
But maybe you’re not ready for your marriage to become another COVID-19 victim. There is an intermediate step you could take before you invest time, money and energy in getting divorced. Instead, you could plan your divorce – with a postnuptial agreement. This step would allow you to work on your relationship while also knowing that if it doesn’t work out you’ve created an outline for how you and your partner will get divorced.
A postnuptial agreement is exactly what it sounds like. It’s an agreement that is made after a couple is married, and it’s about what will happen financially if they divorce. It’s signed by both parties and is notarized and private.
Now, a post-nup can’t address what will happen to children, because child custody can’t be covered in a post-nup. There also can’t be any financial incentive for one spouse to leave the marriage.
Here’s a look at why you might consider a post-nup.
1. You’re getting back together after something bad – perhaps an affair.
While you and your spouse have chosen to reconcile, you have also decided to lay out some terms of personal responsibility and accountability. It’s like you’re saying, “If this happens again, this is what we are going to do and how we will handle our money and other assets in our divorce.”
If not infidelity, perhaps your partner has been wastefully spending down assets or even gambling. Or, the issue might be an alcohol or drug abuse problem, and perhaps you or your spouse have been in and out of rehab multiple times.
A post-nup allows you to reconcile without having additional legal exposure financially. In other words, you aren’t penalized financially for giving your marriage another go.
The idea is this: You’re entering into this agreement to move forward in the right direction, to get your marriage back on track. You are going to hold each other accountable. If one of you messes up, you know how you will address your assets when you break up.
2. You need to make a change to your premarital agreement.
If you have a premarital or prenuptial that needs to be changed, that’s also where a post-nup comes in. Say you inherited money and don’t want your spouse to get it if you divorce.
Or, perhaps your pre-nup agreement says in case of divorce there is to be no alimony or division of property, but after many years of marriage your financial situation has changed and that no longer makes sense. Maybe your spouse was the breadwinner when you got married but now you are.
Sometimes big life changes require a couple to change their pre-nup – to account for a new way in which they would want to handle their money in the event of a divorce – and the post-nup is the way they do that. Things change, and sometimes marital agreements must change, too.
3. You or your spouse is entering into a new business arrangement.
Postnuptial agreements are also common when one partner starts a new company or business and doesn’t want the spouse involved in financial decisions or to be able to lay claim to the business in the event of a divorce.
If you are going into business with outside partners, a post-nup could be in order. Your partners might want to ensure that your spouse doesn’t have an interest in the business later in the event you divorce – or even die.
The case for postnuptial agreements is clear: People forget that marriages are financial relationships and business relationships, too. Post-nups help you map out a financial plan as a married couple. And they are made when you both are happily married – or at least working toward that.
It’s much easier to do the right thing when you and your spouse are still in love and working toward a common goal, which is hopefully a life together forever. But if happily ever after doesn’t happen, you’ve done the planning, and hopefully divorcing is less costly, emotionally and financially.
Tonya Graser Smith is a Board Certified Specialist in Family Law, licensed North Carolina attorney and founder of GraserSmith, PLLC (opens in new tab), in Charlotte, N.C. She focuses her practice on divorce, child custody, child support, alimony, equitable distribution, prenuptial agreements and other family law matters.
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