POSTNUPS: FIXING MARRIAGES AND PROTECTING INDIVIDUALS

Lately, it seems as though postnups (Post nuptial Agreements) are the new prenups (Prenuptial Agreements). According to a recent survey, 50 percent of matrimonial lawyers, including myself, reported a rise in these contracts, which give married couples an opportunity to rewrite the rules of their marriage on everything from property, consequences of cheating and money. The most famous example of is Tiger Woods who is rumored to have an agreement to pay his wife, Elin, $5 million to stay in the marriage. These days more and more individuals are being compensated for their spouse’s infidelity and breach of their marriage contract, but in high profile marriages the rise of postnups are being credited for saving marriages. For example, if one spouse is a compulsive gambler, the other spouse may stay in the marriage if a post nuptial agreement is in place stipulating that certain accounts and/or assets are separate property and cannot be used for such purposes, and that all of the gambler’s debts are their own responsibility. Thereby, the spouse is secure and protected in case of divorce caused by the other spouse’s gambling problems.
Postnups are becoming so prevalent, that even some Hedge funds are known to force their high earning principles with a stake in the company to ensure their spouses won’t take half the business in case of a divorce. In fact, I gave a lecture at Montclair Univiersity, in Montclair, New Jersey, to a large group of business student about the topic of how to protect one’s rights and interests in a business from the impact of divorce and postnups were a big part of my lecture. This becomes especially important when a couple marries before there is any need of a prenup, meaning not many assets are owned by either spouse, but eventually one or both of the spouses acquire major assets and/or interests in a businesses. Business owners must also be very aware of their partners and ensure that they also have agreements with their spouses, so that a partner’s spouse does not walk away with half the business, leaving you, a non-party of the divorce in ruins.
Sure, it is not the most romantic or sexy topic of conversation between spouses, essentially planning a divorce in case it happens, but adult spouses must acknowledge the possibility of going through divorce. This becomes even more apparent, when one takes into consideration the rate of divorce in America being at approximately 50%. There is a stigma that surrounds postnuptial and prenuptial agreements, and these contracts are seen as shallow, contrary to the principles of what is mine is yours, and what is yours is mine, but this is not the case. Individuals, prepare Wills in case of death because death is a possibility, as should people protect themselves and their business interests, from the possibility and consequences of divorce.
Lastly, it is important to remember that according to the IRS code there are certain assets one cannot waive until they are married, so a post nuptial agreement might be required to back up a prenuptial agreement. Moreover, for both a prenuptial and post nuptial agreement there must be full disclosure. Therefore, both spouses must be very well informed of how much all assets are worth, how much they will receive in case of divorce and how much they are waiving in case of a divorce.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com