While most people are familiar with prenups, at least from movies or other similar avenues, postnuptial agreements are less common and therefore, not often considered as an option to save a marriage. However, they certainly can be successful if created in the right environment and with the right intent. I will discuss a little bit about postnuptial agreements in California to hopefully uncover the mystery of these non-mysterious documents.
As a professional family mediator, I not only help couples who are seeking a divorce, but also those who may want to discuss specific issues before marriage (think premarital agreements or “prenups”) and after they have been married (postnuptial agreements or “postnups”).
A postnuptial agreement is a legal document that married couples create after they get married. It outlines how their assets, debts, and other important matters would be handled in the event of a divorce or separation. It’s like a roadmap for what would happen if the marriage doesn’t work out, which may sound a bit negative, but it can have several benefits.
Benefits of Postnuptial Agreement
Clarity & Peace of Mind
Firstly, a postnuptial agreement can provide clarity and peace of mind for both partners. It allows them to openly discuss and agree upon financial and other important issues while they are in a good place in their relationship. By having these conversations early on, it can reduce conflicts and misunderstandings later if there is a breakdown in the marriage.
In some instances, a postnup will be used simply because a prenup couldn’t be drafted and signed within the legal guidelines prior to the wedding taking place. It is possible the couple have already had the conversations and agreed as to what they want in this document, but just couldn’t get things processed within the very strict timeline that prenups require to be valid. If you are interested in learning more about the qualifications necessary to make a prenup valid, read our helpful blog post: Prenuptial Agreements San Diego Mediator.
Protection of Assets & Property
Secondly, a postnuptial agreement can help protect individual assets and property. If one partner has significant personal assets or family inheritance, a postnuptial agreement can ensure that those assets are kept separate and protected in case of a divorce. It can also help to define how jointly acquired assets would be divided, which can prevent disputes and costly legal battles.
In other instances, there may be an asset, or assets that come into the control of one of the spouses after they are married, and the receiving spouse wishes to protect said asset. For our purposes, I will go with an inheritance or a gift. While the law places an inheritance or a gift into a category that is separate property of the receiving spouse, there can be conflicting views about this reality and if several years go by and the money is used to purchase community assets, it can feel unfair to then have the receiving spouse request a reimbursement of all his or her separate property inheritance or gift.
We often see arguments over gifts moreso than inheritances. The scenario is: one party’s parents gift an amount of money for the couple to purchase their first home. The happy newlyweds take the gift and purchase the home, never considering the effects of failing to clarify who the gift was to (just the spouse whose parents made the gift? ..or was the gift to both spouses?).
20 years later, the couple has sold and purchased several homes and now they come in for a divorce. 20 years after receiving the gift from the parents/in-laws, the discussion is had as to whether that gift was meant to be a joint gift, or a gift only to the one spouse. With a divorce looming, of course the answer is typically that it was only meant for the one spouse, whereas if the question was asked when the gift was provided, 20 years prior, it may have been a different answer.
Memorializing these issues when they occur can really assist parties if they do find themselves in a position where assets are being divided many years later.
Address Financial Imbalances
Thirdly, a postnuptial agreement can be a way to address financial imbalances within the marriage. If one partner earns significantly more than the other or if one partner has significant debts, the agreement can establish fair financial arrangements that both partners are comfortable with. This can help maintain a sense of fairness and stability in the relationship.
A great example of when you can foresee an imbalance being created is where one parent chooses to stay home with the parties’ young children and stop working. This decision can have severe and lasting consequences on one’s career path and it should be discussed and clarified what the parties will do to offer protection to that spouse should they face separation or divorce in later years.
It’s easy to see how resentments can build over the years and again, 15-20 years after a couple made the decision for one party to stay home, now the party who continued to grow in their career feels it is unfair to have to provide ½ of their income to the other party because he or she “never worked.”
The deep thorough conversations the couple had when they were in love and about to embark on their parenting journey have long faded and each party likely has a very different recollection as to what did or did not transpire that lead to the result of one party giving up their ability to grow their own career. Having that discussion in writing, and signed by both parties, can provide protection to the party who stays home. And will also serve as a nice memory recall for anyone who feels the conversation wasn’t what it really was.
Foster Communication & Trust
Finally, a postnuptial agreement can strengthen a marriage by fostering communication, trust, and mutual understanding. By openly discussing and addressing potential issues and concerns, couples can strengthen their bond and build a stronger foundation of trust. It shows a willingness to work together and plan for the future, which can ultimately lead to a more stable and harmonious relationship.
Difficult conversations are always going to be difficult. Accordingly, they are the conversations that parties often have a foggy recollection of. There is so much emotion around them it is hard to stay clear headed while having them, and easy to forget the details as time goes by. Therefore, to keep both parties aware of any potential pitfalls that can create resentments as years go by, having those conversations are paramount to maintaining a healthy marriage. Memorializing those conversations in writing, into a postnuptial agreement, can help keep those details clear as time goes by, and memories begin to fail.
So, while some may feel that a postnup is “creating” an unnecessary issue that will lead to divorce, similarly to how prenuptial agreements are perceived, it really is the opposite. Having hard conversations early and often and keeping track of what is agreed on is one of the best ways to limit resentments and help each partner feel stable and appreciated for whichever role they play in the marriage. It can be difficult to remember the sleepless nights of newborns when your children are grown and out of the house. However, when you are in the thick of it, you are both very aware of the time and effort that goes into being a stay-at-home parent. It is far more work than most realize unless they are or have gone through it.
Additional Postnuptial Agreement Benefits
Here are a few other reasons married couples may consider getting a postnuptial agreement:
Change in Financial Circumstances: If one partner experiences a significant change in income, assets, or debts during the marriage, a postnuptial agreement can help ensure a fair resolution.
Blended Families: When couples have children from previous relationships or have different inheritances, a postnuptial agreement can help protect the interests of all family members and clarify how assets would be distributed.
Business Ownership: If one or both partners own a business, a postnuptial agreement can establish how the business would be handled in case of a divorce, protecting its continuity and value.
Marital Issues: Couples facing marital challenges may choose to create a postnuptial agreement as a way to address their concerns and find solutions that work for both parties. It can be a proactive step to strengthen the marriage by addressing potential sources of conflict.
Marital Mediation & Postnuptial Agreements
Should you draft your own postnuptial agreement? It’s important to note that a postnuptial agreement should be created with the help of legal professionals, such as family lawyers or mediators, to ensure it is legally valid and fair to both parties.
If you are interested in exploring more about how these documents can work for you and what the process looks like in order to obtain a postnuptial agreement, please reach out to us here at San Diego Family Mediation Center.
by: Jennifer Segura
