Marriage Advice From a Divorce Lawyer
According to a Harvard Law School study, a mere five (5%) percent of couples enter into prenuptial agreements prior to marriage. So, it’s no surprise when someone finds out what I do for a living, taps me on the shoulder and opens up with “Let me ask you a question?” Of course I’m always happy to answer questions about what I do and provide information that could help out friends, family and colleagues. Almost always the question is prefaced with the caveat, “My marriage is fine. We’re not considering a divorce, but I’m just curious.” No judgment here. It genuinely makes sense that a married person would have questions about marital laws, regardless of the status of their relationship. Marriage is hard and as the honeymoon phase wears off and finances develop together people become more aware of what that would look like in the event of a divorce.
“My wife deposits her checks in her own account and I deposit my checks in my own account. Is that money protected?” Of course, I then get to be the bearer of bad news. “Unfortunately, no.” I respond. “Title isn’t controlling in New York.” In layman's terms, it doesn’t matter whose name it’s in. If it was earned during the marriage, it’s marital and will be split 50/50 in a divorce. What’s the point of knowing now, some might ask. After all, they didn’t sign a prenup so they’re screwed either way, right? Not necessarily.
Kayne West expanded the public’s knowledge of prenuptial agreements in his “Golddigger,” but have you heard of a postnuptial agreement? A postnuptial agreement allows a couple to enter into an agreement regarding their finances even after they are legally married. It operates much like a prenuptial agreement, only it’s even more enforceable than a prenuptial agreement because it’s difficult to argue that a person was forced to sign it or the other person would call off the wedding. It may also allow for a more accurate picture of a couple’s finances to be included in the agreement.
Why Do People Sign Postnuptial Agreements?
The most common reason people hire me to draft and negotiate the terms of a postnuptial agreement is if there is trouble in the marriage. For example, if one person finds out that their spouse has been unfaithful or is mismanaging the finances, he or she may seek to iron out the financial aspects of the marriage and gain some security, knowing that he or she can continue to work on the marriage without worrying about what the terms of the divorce would look like once things got messy.
A marriage doesn’t need to be troubled in order for a postnuptial agreement to make sense. Let’s say the couple has recently had a change in their financial situation. For example, one of the parties recently received a promotion, tremendous raise or inherited money that he or she wants to invest freely, a couple may use a postnuptial agreement to ensure that the monies are properly protected and/or categorized, so that neither spouse needs to question the other’s motives moving forward.
In fact, a couple can enter into a postnuptial agreement just because they’ve come to a meeting of the minds and decided that it’s time to get their financial agreement in order, much like when a couple decides they are ready to draft their wills or file their taxes. Once a couple realizes that they do not agree with New York’s Domestic Relations Laws, or see that the finances of the marriage aren’t exactly equal, it’s not uncommon to want to address those issues.
What Deters People from Considering a Postnuptial Agreement?
No one wants to have the uncomfortable conversation, but if you are capable of contractually obligating yourself to a person for the rest of your life, you are capable of broaching the tough subject of finances.
And yes, finding and/or hiring an attorney can be intimidating and expensive, but there are plenty of quality lawyers who are willing to provide you with tailored information and work with you for a reasonable fee. Don’t be afraid to talk to people you trust, who may have a person referral. If not, do your research. A good attorney will be accessible and a quick phone call will give you a good feeling about their knowledge of the subject and their fees.