Danielle Hoston: Sooooo ... what if you should have gotten a prenup but ... you're already married?
I imagine that there are quite a few spouses who have learned over the course of their marriage that the laws of the state they live in greatly differ from their own personal opinion about the division of assets in the event of a divorce. Or perhaps they've moved to a state with laws governing divorce that greatly differ from the state they previously resided in. Interestingly enough, there are only nine "community property" states where assets are evenly divided at the end of a marriage. All other states are "equitable distribution" states. This means that the judge will consider the financial situation that each spouse will be in after the termination of the marriage and make a determination as to the appropriate distribution of assets.
I thought that many of the readers in the momlogic community might be interested in finding out more about postnups, so I continued my discussion with a very high-profile attorney in Beverly Hills. Here's what I found out ...
Please keep in mind that these are general concepts and that the laws in your state could affect the answers to these questions because the laws in some states and countries are extremely different from others.
How does a postnup differ from a prenup?
In theory, you can address the same things in a postnup as in a prenup, except perhaps the ability to restrict spousal support. Additionally, postnups are less certain than prenups because spouses have a fiduciary duty of loyalty and fairness once married. Prenups can be designed to be beneficial for one spouse and bad for the other and because you are not married, this is acceptable in the eyes of the law. Postnups require that spouses treat each other fairly and not exercise "undue influence." For these reasons, postnups are more easily nullified.
Please elaborate. How are prenups and postnups nullified?
There are three general ways to nullify these agreements in court by proving that the agreement was:
1. "Promotive of divorce" by financially incentivizing a party to terminate the marriage
2. "Under duress" or proven that the agreement was not freely entered into by both parties
3. "Unconscionable" or "shockingly wrong" in the eyes of a judge who can choose to overrule the terms of the agreement.
Additionally, full financial disclosure may be required at the initiation of an agreement. If it is not given or found to be fraudulent, it may render the agreement unenforceable.
Does a prenup/postnup make a divorce easier?
Many times. Attorney fees can be very extensive if there is no agreement in place. These agreements allow for the focus of the lawyers to center on a single issue ("Can I break the agreement?") instead of the many issues that a divorce can present. These agreements also allow for the dissolution of marriage to be much less contentious. On numerous occasions, I have seen the enforcer of a prenup/postnup give more than the agreement would have required.
Can a prenup/postnup keep you together?
Absolutely. It gives everybody certainty and comfort in knowing exactly where everything is financially. Prenups can make you stick it out because they may eliminate or greatly reduce the motivation of financial gain through a divorce.
Unfortunately, the person you marry is often not the person you divorce. I think we can all agree that divorces are devastating enough to not include financial devastation for either party. While marriage should be about love, it is also a legal partnership with ramifications that should be considered carefully. Consult an attorney so that you may understand what type of agreement, if any, would be best under a variety of scenarios. Keep the dialogue open and as painless as possible with your spouse. It is -- after all -- only money.
Do you need a postnuptial agreement? Why or why not? Have you moved from a "equitable distribution" state to a "community property" state or vice versa?
|Danielle Hoston is a business and finance expert with Hoston and Associates. She is the mom of one and resides in Los Angeles.|