Like in many other life events, preparation is key to a successful marriage. While many view prenuptial agreements as an end-of-marriage blueprint – and there is no doubt this is one of their primary purposes – prenups can also help solidify the foundation of a marriage. The same is true of postnuptial agreements, and even good old-fashioned estate planning.
The Prenup
On the surface, a prenup appears to be one of the least romantic premarital acts one can take. The fact is, however, a prenup lends a sense of predictability and security to a marriage. Many difficult financial descisions are addressed up front, thus, presumably, removing certain touchy topics from daily discussion. Transparency through the requisite financial disclosures also engenders a sense of trust, and perhaps even gives needed empowerment, to the less monied spouse.
More than 50% of all states have adopted the Uniform Premarital Agreement Act, or some variation thereof. And, while every state honors some form of prenuptial agreement, interpretation and enforcement vary widely. For example, though many states focus on the parties’ financial situations at the time the prenup is executed, others afford a “second look” at the time enforcement is sought. Suddenly, your well-drafted prenup is no longer an airtight, binding document and has been relegated to just one interesting perspective on the topic. In those jurisdictions, critical facts may also be subject to de novo review. So know your laws.
The Postnup
Like the prenup, a postnuptial agreement is also a useful device to defuse economic tension and afford both parties predictability and security. Unlike the prenup, however, a postnup requires independent consideration beyond the marriage itself. Postnups are useful when financial issues begin to plague a marriage and there is no prenuptial agreement to rely on for guidance or protection. Postnups may also be effective when behavioral issues arise (e.g., infidelity, addiction, etc.) and the couple still wishes to preserve the marriage – but on new terms. Though one may not be able to deter bad behavior through a postnup, these issues often translate into shifts in bargaining power, which may ultimately enable a marriage to succeed – or, at a minimum, continue with a new-found sense of fairness and security.
A postnuptial agreement grants a married couple a second chance to reap the benefits of a prenup. While all states enforce some type of postnuptial agreement, as with prenups, these states’ interpretations and applications vary widely, so make no assumptions. In Michigan, for example, courts had long been suspicious of postnups, believing them to be guidelines for an anticipated divorce. These agreements are now much more accepted throughout the country. But, drafters must still be sensitive to public policy issues – not to mention the fact that these contracts must clearly set forth the underlying consideration beyond the marriage itself.
If you’re contemplating a postnuptial agreement – and a prenuptial agreement already exists – confirm whether the applicable state law allows amendment of the prenup. When permissible, amendments can often be made without additional consideration, thus providing a potentially less complicated alternative to a postnuptial agreement.
Hands Off the Kids
Both prenups and postnups must avoid any provisions which could be interpreted to negatively affect child support. In Illinois, courts have stricken overbroad attorney fee waivers because they have been interpreted to adversely impact the support of a child – directly contrary to the provisions of Illinois’s (and every other state’s) prenup statute. These agreements should likewise not address physical custody, decision-making or similar child-related matters – issues delegated exclusively to the courts for determination of the child’s best interests.
Estate Planning
Do not underestimate the power of this tried and true gold standard of wealth allocation and succession. While I defer to my Trusts and Estates colleagues on specifics, a thoughtful estate plan can provide certainty and continuity similar to that of a prenuptial or postnuptial agreement when neither of those is a viable option. Like prenups and postnups, the implementation of these plans arises, by definition, during the most unhappy life events. To survive any later challenge, however, estate plans should ideally be drafted during happy times.
Other Creative Options
While we family lawyers are first and foremost attorneys, we are often asked to wear other (probably unauthorized) hats to help guide and direct our clients. For instance, we are replete with psychological resources to meet our clients’ very real needs. And, when a client is ambivalent about taking the divorce leap, we guide them to marital therapists or other professionals. I’ve even suggested less conventional marriage-saving techniques such as a renewal of vows – the purely symbolic, yet often impactful, ceremony which affords a “cleansing” effect and offers a fresh start, similar to that of a postnuptial agreement.
But, there is no substitute for a thoughtful, well-drafted prenuptial or postnuptial agreement, or a strategically sound estate plan. While perhaps primarily designed to protect and preserve assets, these devices also offer security, transparency and predictability – all of which can strengthen the foundation of any marriage.
