Articles Posted in Prenuptial and Postnuptial Agreements

Now that most of the dust has settled from news of former NY Governor Eliot Spitzer’s divorce settlement, it seems like a good time to address the details.

For those unfamiliar with the situation, Eliot Spitzer served as New York’s 54th Governor and was only in office for a little over a year before a sex scandal was brought to light, forcing Spitzer into resignation. News broke in March of 2008 that Spitzer was a frequent patron of an elite escort service in New York City. Details continued to emerge, including allegations that Spitzer was involved with a prostitution ring in the city. A memorable image from Spitzer’s press conferences was his wife, Silda Wall Spitzer, who stood, stone-faced, by her husband throughout the whole ordeal.

Silda Wall Spitzer’s allegiance and loyalty to her husband became another storyline. Then, in 2013, Spitzer announced that their marriage was ending, and the divorce was filed in January of 2014. Between the initial scandal breaking and other details emerging in the following years, the question was definitely not why, but more of how the divorce would play out.
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Last month, one of the more enjoyable stories in the news revolved around the 11/12/13 date. It seemed everywhere you looked, news outlets, bloggers, and talk shows were talking about the number of weddings happening on this unique date. Weddings on 10/11/12 were no different, as people seemed to rush to the altar in order to celebrate their special day on this truly distinctive date.

The trend of getting married on a consecutive number date did not start in the past two years; people often look to consecutive dates as their own type of holiday – perfect for a wedding. In the past couple of years the trend has seen a rise, though. Much of this is undoubtedly due to the fact that after December 13, 2014 passes, it will be quite a long time until couples can sprint to the altar for a consecutive date wedding (and “long time” may be putting it mildly!). This past November was especially interesting because the consecutive date fell on a Tuesday – not exactly an ideal day of the week for a wedding. Yet even though a Tuesday wedding seems less than perfect, there was an increase of over 700% than the second Tuesday in November of the previous year. Even Las Vegas was “cashing” in on the special date, offering wedding deals discounted even more than usual for its chapels. With so many people tying the knot in one day, the story of true love and happiness practically writes itself. However, it also raises some considerations about how to handle the upcoming nuptials.

I’ve written previously about the value of prenuptial agreements for professional athletes (and other individuals with fluctuating high-income professions), but prenups are important for virtually any individual looking to get married. Couples that are in a hurry to get to the altar can sometimes forget to handle details and issues that may affect them down the line. In my previous post on prenuptial agreements for professional athletes, I compared the relief an athlete may feel after signing a contract to the relief a couple may feel once the prenup is handled. To be clear, a prenuptial agreement is an agreement entered into before marriage which sets out the assets of each person and can include control of each person over the assets and financials. The agreement spells out how the assets will be treated should the marriage fail. Prenuptial agreements have become increasingly common when at least one spouse has a high net worth (see Prenups and Professional Athletes) or has children from a prior marriage; but the logistics of a prenuptial agreement make sense for any couple looking to walk down the aisle. It is extremely important for all couples to communicate about money before and during marriage.
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Having an open and honest conversation with your fiancée about money may be uncomfortable, but it is an important discussion to have before marriage. It is especially important that a couple entering a marriage be open and honest with each other about finances. Individuals often have different financial styles, and open communication helps to establish a framework for managing different money styles in a productive way. One way to encourage open and honest communication between you and your fiancée before saying, “I do,” is by creating a prenuptial agreement (“prenup”).

A prenuptial agreement is a private agreement between two parties contemplating marriage. It is treated as a contract that is enforceable by the Courts. The couple arranges, in advance, financial matters in the event of divorce or death. Such matters include student or business loans, credit card debt, and support obligations. The couple may also want to address separate property issues, advanced degrees or licenses and/or businesses started before the marriage. The parties make full disclosure of their finances and with the help of an attorney representing each party, create a mutually agreeable plan that each party supports.

Preparing a prenup provides an excellent forum to engage in dialogue with your soon-to-be spouse about finances. The topic of money can be difficult to address, and often times we avoid the subject, leaving it for another day. Unfortunately, putting off these difficult conversations leaves a couple vulnerable to future negative consequences. Sharing your financial needs, concerns, and views up front with your fiancée places both of you in a better position in the long run. A family attorney or mediator can help facilitate a prenup negotiation, setting the stage for better communication about money, future plans, and many other topics, providing couples with a sense of security about how finances will be handled not only if the marriage dissolves, but if a conflict arises. Addressing your mutual wishes and terms in a prenups minimize the chance for adversarial proceedings or a long and painful court battle.
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It is not uncommon to hear stories about betrayal in a marriage. Whether it makes national headlines or involves the marriages of our neighbors and friends (or maybe even our own marriages), we may feel outraged, embarrassed, or sympathetic for the spouse that was betrayed. Over the years, I have had clients come to me after a betrayal seeking to stay in the marriage. They want to protect themselves from any further harm.

Even if trust has been broken, both spouses may want to pick up the pieces, work through problems, and move forward with the marriage. A postnuptial agreement (“postnup”) is a flexible tool to help a married couple rebuild trust and create goals for a fulfilling life together. In other words, it can be a creative way to help make the marriage work.

A postnup is a legally enforceable private agreement that a couple enters into after marriage (unlike a prenuptial agreement, which a couple executes prior to marriage). Generally, it is an opportunity for a couple to create understanding about important financial matters. Sometimes, it is the first time both spouses fully understand the family financial picture and make explicit the financial (and other) terms of the union.

The postnup can cover a range of issues, such as the parties’ financial goals, paying off debts, and the distribution of property and other assets, including the martial residence. Creating a postnup can be a way to re-build trust in a marriage and establish a solid financial plan. When forming a postnup, it is crucial that each party honestly communicates his or her needs to the other party.

Talking openly about money, for example, can be difficult if you and your spouse have not done so already. However, an attorney trained in mediation and collaborative law can facilitate the discussion and help you and your partner tackle the financial issues that need to be addressed. When both parties are on the same page and in agreement on financial matters, it provides the couple with a sense of security and makes it easier to move forward in the marriage.

When there is a breach of trust, it does not necessarily mean the marriage is over. The creation of a postnup allows the spouse that was betrayed to voice his or her needs, which can be empowering. It also provides the person an opportunity to exercise a certain level of control and may restore his or her place–and faith–in the marriage. Where both spouses want the marriage to continue, creating a postnup that addresses the couple’s finances is a viable and constructive solution to help preserve the marriage.

A postnup is a contractual agreement between two parties. Therefore, a legally enforceable postnup must follow certain requirements in order for it to be held valid under the law. Both parties must have capacity to enter into the agreement. Generally, a valid postnup must also be in writing and shall contain the written signatures of each party. There also must be adequate consideration in order for a postnup to be deemed legally enforceable. Consideration is where one party agrees to give or do something in exchange for a promise or the performance of an act by the other party.
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