Anyone ever do a post nup?

[ponder]

DH and I have been married for 13 years and are the happiest people we know, both in our marriage and in ourselves. When we married we had nothing, so a prenup was not a consideration. 13 years later our circumstances have changed considerably and as of next year are going to change considerably again. Things have never been better.

Unfortunately, we are also reaching a point in our lives where divorces are happening among our friends. Some really emotionally and financially devastating divorces. It's prompting DH and I to discuss "what if" that ever happened to us. If we did divorce, I live in a community property, non alimony, state. DH also owns his own business which I cannot legally own. I feel that the nature of our financial situation would make community property and even child support not clear cut. I am thinking that we should consult our attorney to see if a post nup would be in our best interest.

Has anyone ever done a post nup? Was it effective if you did divorce? Did you tell friends and family (I'm thinking that this is a. None of their business, and b. Not a good idea).

Pros, cons, and any experiences would be welcome.

 

[kenny]

Is there even such a thing as a 'post-nup'?

 

[caf]

Is there even such a thing as a 'post-nup'?

Yep.

 

[kenny]

I thought the premise of the prenup was ... why should wealth accquired BEFORE marriage be split equally on divorce since marriage is a partnership in which it is reasonable for wealth acquired during the marriage be split 50/50.
IOW the wife could not have climbed the corporate ladder and made all that money if the husband didn't stay at home to raise the kids and dust the house.

 

[ponder]

I thought the premise of the prenup was ... why should wealth accquired BEFORE marriage be split equally on divorce since marriage is a partnership in which it is reasonable for wealth acquired during the marriage be split 50/50.
IOW the wife could not have climbed the corporate ladder and made all that money if the husband didn't stay at home to raise the kids and dust the house.

You know, I naively assumed that too. I have friends that are finding out the hard way that community property and even child support is not cut and dry.

 

[kenny]

I thought the premise of the prenup was ... why should wealth accquired BEFORE marriage be split equally on divorce since marriage is a partnership in which it is reasonable for wealth acquired during the marriage be split 50/50.
IOW the wife could not have climbed the corporate ladder and made all that money if the husband didn't stay at home to raise the kids and dust the house.

You know, I naively assumed that too. I have friends that are finding out the hard way that community property and even child support is not cut and dry.

Does this mean you don't like my picture?

 

[ponder]

I thought the premise of the prenup was ... why should wealth accquired BEFORE marriage be split equally on divorce since marriage is a partnership in which it is reasonable for wealth acquired during the marriage be split 50/50.
IOW the wife could not have climbed the corporate ladder and made all that money if the husband didn't stay at home to raise the kids and dust the house.

You know, I naively assumed that too. I have friends that are finding out the hard way that community property and even child support is not cut and dry.

Does this mean you don't like my picture?

Love the pic, I'm thinking about buying one for DH to do dishes in. I'm not allowed to do them because I don't load the dishwasher "correctly".

 

[lulu]

The validity of post nups varies by state. In Michigan, for instance, they are only enforceable if the agreement is made after separation.

Have you checked out the law where you are?

 

[sonnyjane]

Certainly not a lawyer but I've always heard that post-nups don't hold up as well in court and that the division of assets is a lot more murky. You know... "He earned this money... But without my emotional support or maintaining the home that might not have been possible..." And little things like that.

 

[TooPatient]

Certainly not a lawyer but I've always heard that post-nups don't hold up as well in court and that the division of assets is a lot more murky. You know... "He earned this money... But without my emotional support or maintaining the home that might not have been possible..." And little things like that.

This is what I've heard to. I think it also really varies by state.

One thing to remember is that if both parties are pretty much in agreement there really won't be much of an issue. Assets are divided between the two how they feel like unless they fight and the court gets involved. My mother and her ex listed out what each would get, attached it to the divorce papers, and the attorney filed it in court. No problems.
It is a little trickier with kids, but generally the same idea. We called out no child support in the plan (so we pay all expenses and the mother pays nothing) and the judge had no problem.

If either side wants to fight....
That is when it turns ugly. No amount of pre or post will influence much. Especially post and especially in a community property state.

That said, a document written up when both people are happy and it isn't an emotionally upsetting time might be a good thing to file away. It could be pulled out if ever needed and (hopefully) both would agree it was fair still.

Of course... Dangerous territory to go in. Do you really want to decide who gets the kids and the house? How would that affect current feelings?

 

[ponder]

It is good to know that a post nup may not have much validity when push comes to shove. DH and I have been discussing this topic a lot lately as we feel surrounded by divorce and we both agree that what we see going on is terrible. We were wondering if you already had a document in place if things wouldn't be a little more cut and dry when emotions start to run high.

 

[RandG]

Sounds like you have a great relationship that you can talk openly about something like this. It's not easy.

If this is a real issue and you want some education and transparency, I would suggest going to speak with a matrimonial attorney (together), and one that specializes in collaborative divorce and mediation. Tell them you're looking to explore options. Just sit for a consultation and understand what is possible in your jurisdiction. From there, you can decide what to do.

Child support is formulary and dictated by local statutes. Courts will always consider going beyond the formula, but never under, and its based on the income of the parties, as well as overall standard of living. Your agreement can address this. In the event of divorce, a judge will have to sanction the custody/child support provisions, but a good matrimonial lawyer will help you navigate.

People often mistakenly think of these agreements in the context of pre-marital assets only. But there are many instances where one party comes into a marriage with an asset (real property, investments, a business) that increases in value over the course of the marriage, because of the contribution of both parties. Similarly, if one party inherits property or a business (after the commencement of a marriage) that increases in value because of the efforts of both parties, it can get complicated in a divorce. The mere fact that you're asking the question tells me that getting some comprehensive information that is applicable to your specific situation can only be helpful, especially in light of your comment that your spouse owns a business which you have no ownership interest, but which evolved during the marriage.

It's never who you marry, but who you divorce that counts. What starts as roses and diamonds can often morph into something really ugly, and made worse, when third parties are involved. When there are real assets involved (or significant debt held by one party) I'd want to be able take control of the outcome, rather than leave it to the courts and strangers to dictate for me. I'm a big proponent of pre/post nuptial agreements.

Good luck!

 

[baby monster]

That said, a document written up when both people are happy and it isn't an emotionally upsetting time might be a good thing to file away. It could be pulled out if ever needed and (hopefully) both would agree it was fair still.

I whole-heartedly agree with above statement. It's much easier to discuss difficult issues when both parties are happy and content. Even if the document doesn't hold up in court, it opens up the conversation to seek professional advice to find out each party's rights in your particular state. I'd go see a competent matrimony attorney after DH and you agree on some fair division of family assets. Child support, as RandG pointed out, is up to courts.

As far as sharing with friends and family, I'd keep this to yourself. No need to open your relationship and financial situation to be examined by those close to you. Only leads to too many opinions and trouble.

FWIW, DH and I also started with very little. We're in much better financial position now and already went through the first wave of divorces of our friends. So I understand where you're coming from because we had that conversation already. We have a general understanding and, after seeing so many of our friends waste ridiculous amounts fighting in court, will most likely stick to it.

 

[Mia16]

Postnups are common here especially those who have postnuptial agreement already and one spouse have a significant shift in finances.
Business owners do it all the time because a divorce could seriously threaten assets of the business. Starting-over is another popular reason.
Like others said, drafting it own when the marriage is going well is so much better than when the marriage starts to deteriorate. Having this framework for a separation will save you time and legal fees in case of divorce. You should each have legal representation and most important, the agreement has to be fair to both.
This is not about love, is estate planning. A great opportunity to negotiate your child's education and place provisions that will protect you i.e. keeping your home in case of business going south. Best of Luck!

 

[momhappy]

Certainly not a lawyer but I've always heard that post-nups don't hold up as well in court and that the division of assets is a lot more murky. You know... "He earned this money... But without my emotional support or maintaining the home that might not have been possible..." And little things like that.

Yes, this. I would think that it would be difficult to argue that assets earned during a marriage were somehow entirely separate. Even in a scenario where one spouse owned a business, the other spouse could argue that they provided emotional support, etc. A post-nup sounds like a big waste of time, money, and energy to me, but perhaps someone with more legal expertise can chime in.

 

[Hudson_Hawk]

Sounds like you have a great relationship that you can talk openly about something like this. It's not easy.

If this is a real issue and you want some education and transparency, I would suggest going to speak with a matrimonial attorney (together), and one that specializes in collaborative divorce and mediation. Tell them you're looking to explore options. Just sit for a consultation and understand what is possible in your jurisdiction. From there, you can decide what to do.

Child support is formulary and dictated by local statutes. Courts will always consider going beyond the formula, but never under, and its based on the income of the parties, as well as overall standard of living. Your agreement can address this. In the event of divorce, a judge will have to sanction the custody/child support provisions, but a good matrimonial lawyer will help you navigate.

People often mistakenly think of these agreements in the context of pre-marital assets only. But there are many instances where one party comes into a marriage with an asset (real property, investments, a business) that increases in value over the course of the marriage, because of the contribution of both parties. Similarly, if one party inherits property or a business (after the commencement of a marriage) that increases in value because of the efforts of both parties, it can get complicated in a divorce. The mere fact that you're asking the question tells me that getting some comprehensive information that is applicable to your specific situation can only be helpful, especially in light of your comment that your spouse owns a business which you have no ownership interest, but which evolved during the marriage.

It's never who you marry, but who you divorce that counts. What starts as roses and diamonds can often morph into something really ugly, and made worse, when third parties are involved. When there are real assets involved (or significant debt held by one party) I'd want to be able take control of the outcome, rather than leave it to the courts and strangers to dictate for me. I'm a big proponent of pre/post nuptial agreements.

Good luck!

I haven't read all of the responses, but one issue with the bolded section applies to business owners. Yes, in most jurisdictions child support is formulaic and based on income; however, its based on taxable income. Someone can choose to suppress their income (take a "pay cut" because of the market, etc), meanwhile expensing many of their living expenses through business channels. A personal car is suddenly paid for by the business because "it's more cost effective then reimbursing for mileage". Cable and phone bills are switched to a business plan paid for by the business, etc. Ethical, moral or legal? Not likely, but the circumstances that usually lead to a divorce that gets financially messy often aren't either. If a person lacked character and wanted to they could easily cut their taxable income and find other ways to carry their living expenses. That's where having a good forensic accountant comes into play when divorcing.

 

[smitcompton]

Hi,

Elan Musk, the Tesla car developer, had a post Nup with his wife. After their marriage, he asked her for a post-nup which she agreed to.

Not too long after he sold his first company for many millions and went on to work on the Tesla. His wife is beautiful, they have 5 children and I guess problems developed in their marriage, so they went to marriage counseling. I guess he had enough of the marriage and just told the therapist to tell her he wanted a divorce.

She no longer thought the post nup was adequate, and asked for more. After the usual fighting he settled for 80 million. What he protected was his businesses. You got the feeling during this documentary that he had no time for her complaints. He just wanted out and payed her to get it over-with.

Neither person seemed bad. I think she was neglected--5 kids at home, with someone who worked all the time. I think the post nup helped. I think only one person can be in charge of a business.

One of my good friends signed a pre nup. It protected his business, She understood. They are still married, 2nd marriages for both, almost 35 yrs.

Annette

 

[ponder]

Sounds like you have a great relationship that you can talk openly about something like this. It's not easy.

If this is a real issue and you want some education and transparency, I would suggest going to speak with a matrimonial attorney (together), and one that specializes in collaborative divorce and mediation. Tell them you're looking to explore options. Just sit for a consultation and understand what is possible in your jurisdiction. From there, you can decide what to do.

Child support is formulary and dictated by local statutes. Courts will always consider going beyond the formula, but never under, and its based on the income of the parties, as well as overall standard of living. Your agreement can address this. In the event of divorce, a judge will have to sanction the custody/child support provisions, but a good matrimonial lawyer will help you navigate.

People often mistakenly think of these agreements in the context of pre-marital assets only. But there are many instances where one party comes into a marriage with an asset (real property, investments, a business) that increases in value over the course of the marriage, because of the contribution of both parties. Similarly, if one party inherits property or a business (after the commencement of a marriage) that increases in value because of the efforts of both parties, it can get complicated in a divorce. The mere fact that you're asking the question tells me that getting some comprehensive information that is applicable to your specific situation can only be helpful, especially in light of your comment that your spouse owns a business which you have no ownership interest, but which evolved during the marriage.

It's never who you marry, but who you divorce that counts. What starts as roses and diamonds can often morph into something really ugly, and made worse, when third parties are involved. When there are real assets involved (or significant debt held by one party) I'd want to be able take control of the outcome, rather than leave it to the courts and strangers to dictate for me. I'm a big proponent of pre/post nuptial agreements.

Good luck!

I haven't read all of the responses, but one issue with the bolded section applies to business owners. Yes, in most jurisdictions child support is formulaic and based on income; however, its based on taxable income. Someone can choose to suppress their income (take a "pay cut" because of the market, etc), meanwhile expensing many of their living expenses through business channels. A personal car is suddenly paid for by the business because "it's more cost effective then reimbursing for mileage". Cable and phone bills are switched to a business plan paid for by the business, etc. Ethical, moral or legal? Not likely, but the circumstances that usually lead to a divorce that gets financially messy often aren't either. If a person lacked character and wanted to they could easily cut their taxable income and find other ways to carry their living expenses. That's where having a good forensic accountant comes into play when divorcing.

This is one thing I have seen to be true and its what I have the biggest problem with. One divorce that we are familiar with the husband brings home the equivalent of 30-40k a month, but his w2 income only formulates child support to be $2500 a month and he has abandoned his family.

 

[perry]

Ponder:

It is really going to depend on the state on how valid a post nup is for what.

As a person in a community property state (and are you in a state that starts with "W"); I did a pre-nup even though we did not have any significant assets. There are many things that a pre or post nup can cover that will be valid in a divorce if properly executed in a community property state; and there are many issues not related to how income or assets are split up. It is also wise to really work thought those issues now up front and define them.

Key for this to work though - is that both you and your husband need to have good individual legal representation who can really educate each of you on what can and cannot be done; and the pro's and con's for each area of the options on what can be done. These are not your cheapest lawyers. I found a lawyer who only does estate planning (including pre & post nups and wills), and company incorporations (trust me they are highly related). I asked her who she felt was her toughest "opposing" Pre-nup lawyer to work with - that made her really have to work and justify everything; and made sure all the i's were dotted and all the t's were crossed. She looked at me and said - He's not cheap. But for my wife I wanted the best representing her side. Figure at least a couple grand each (and don't be too surprised if it twice that).

As far as assets: The post nup cannot unfairly distribute assets acquired prior to its creation; but it will almost always be valid for what happens after it is signed. Doing it now - potentially years away from a problem will have a huge impact in any such divorce proceeding.

The biggest reason for pre and post nups actually are not directly related to finances. Unfortunately many people only focus on the financial portion of what can be done.

As far as the celebrity ones that get tossed out in court. That is not always the case. The key is how good of legal representation did the other party have. It seems to be an almost universal truth that most primary income earners who insist on a pre-nup shortchange the other party in legal representation in developing the pre-nup (for some reason a lot of people think to save money doing a pre-nup). Judges quickly toss those. But if the other party really had competent legal representation and the agreement was fair when signed. The judges almost always uphold them - even in the case of the very wealthy. There is just no basis to toss them out - no matter what some fancy lawyer says.

Finally a piece of not so minor trivia: People who do properly executed (with proper legal representation on both sides) pre and post nups have a lot lower divorce rate. The process forces them to work out some issues up front. If they do divorce; it also more likely to be a relatively calm and quite divorce; where they maintain some degree of friendship and respect for each other. Of course, it takes a certain level of maturity on both sides to go through the pre or post nup process correctly.

I wish you well, you and your spouse sound like a great couple who is working together to ensure a good future.

Have a great day,

Perry

 

[missy]

Ponder:

It is really going to depend on the state on how valid a post nup is for what.

As a person in a community property state (and are you in a state that starts with "W"); I did a pre-nup even though we did not have any significant assets. There are many things that a pre or post nup can cover that will be valid in a divorce if properly executed in a community property state; and there are many issues not related to how income or assets are split up. It is also wise to really work thought those issues now up front and define them.

Key for this to work though - is that both you and your husband need to have good individual legal representation who can really educate each of you on what can and cannot be done; and the pro's and con's for each area of the options on what can be done. These are not your cheapest lawyers. I found a lawyer who only does estate planning (including pre & post nups and wills), and company incorporations (trust me they are highly related). I asked her who she felt was her toughest "opposing" Pre-nup lawyer to work with - that made her really have to work and justify everything; and made sure all the i's were dotted and all the t's were crossed. She looked at me and said - He's not cheap. But for my wife I wanted the best representing her side. Figure at least a couple grand each (and don't be too surprised if it twice that).

As far as assets: The post nup cannot unfairly distribute assets acquired prior to its creation; but it will almost always be valid for what happens after it is signed. Doing it now - potentially years away from a problem will have a huge impact in any such divorce proceeding.

The biggest reason for pre and post nups actually are not directly related to finances. Unfortunately many people only focus on the financial portion of what can be done.

As far as the celebrity ones that get tossed out in court. That is not always the case. The key is how good of legal representation did the other party have. It seems to be an almost universal truth that most primary income earners who insist on a pre-nup shortchange the other party in legal representation in developing the pre-nup (for some reason a lot of people think to save money doing a pre-nup). Judges quickly toss those. But if the other party really had competent legal representation and the agreement was fair when signed. The judges almost always uphold them - even in the case of the very wealthy. There is just no basis to toss them out - no matter what some fancy lawyer says.

Finally a piece of not so minor trivia: People who do properly executed (with proper legal representation on both sides) pre and post nups have a lot lower divorce rate. The process forces them to work out some issues up front. If they do divorce; it also more likely to be a relatively calm and quite divorce; where they maintain some degree of friendship and respect for each other. Of course, it takes a certain level of maturity on both sides to go through the pre or post nup process correctly.

I wish you well, you and your spouse sound like a great couple who is working together to ensure a good future.

Have a great day,

Perry

Excellent advice Perry. Best of luck to you and your dh Ponder. May you never need any of this but good for you in doing what you feel is necessary to be safe and smart.

 

[RandG]

Sounds like you have a great relationship that you can talk openly about something like this. It's not easy.

If this is a real issue and you want some education and transparency, I would suggest going to speak with a matrimonial attorney (together), and one that specializes in collaborative divorce and mediation. Tell them you're looking to explore options. Just sit for a consultation and understand what is possible in your jurisdiction. From there, you can decide what to do.

Child support is formulary and dictated by local statutes. Courts will always consider going beyond the formula, but never under, and its based on the income of the parties, as well as overall standard of living. Your agreement can address this. In the event of divorce, a judge will have to sanction the custody/child support provisions, but a good matrimonial lawyer will help you navigate.

People often mistakenly think of these agreements in the context of pre-marital assets only. But there are many instances where one party comes into a marriage with an asset (real property, investments, a business) that increases in value over the course of the marriage, because of the contribution of both parties. Similarly, if one party inherits property or a business (after the commencement of a marriage) that increases in value because of the efforts of both parties, it can get complicated in a divorce. The mere fact that you're asking the question tells me that getting some comprehensive information that is applicable to your specific situation can only be helpful, especially in light of your comment that your spouse owns a business which you have no ownership interest, but which evolved during the marriage.

It's never who you marry, but who you divorce that counts. What starts as roses and diamonds can often morph into something really ugly, and made worse, when third parties are involved. When there are real assets involved (or significant debt held by one party) I'd want to be able take control of the outcome, rather than leave it to the courts and strangers to dictate for me. I'm a big proponent of pre/post nuptial agreements.

Good luck!

I haven't read all of the responses, but one issue with the bolded section applies to business owners. Yes, in most jurisdictions child support is formulaic and based on income; however, its based on taxable income. Someone can choose to suppress their income (take a "pay cut" because of the market, etc), meanwhile expensing many of their living expenses through business channels. A personal car is suddenly paid for by the business because "it's more cost effective then reimbursing for mileage". Cable and phone bills are switched to a business plan paid for by the business, etc. Ethical, moral or legal? Not likely, but the circumstances that usually lead to a divorce that gets financially messy often aren't either. If a person lacked character and wanted to they could easily cut their taxable income and find other ways to carry their living expenses. That's where having a good forensic accountant comes into play when divorcing.

This is one thing I have seen to be true and its what I have the biggest problem with. One divorce that we are familiar with the husband brings home the equivalent of 30-40k a month, but his w2 income only formulates child support to be $2500 a month and he has abandoned his family.

I'm afraid neither a pre or post-nuptial agreement is going to prevent fraud. Someone capable of tax/child support evasion is probably someone who is capable of all kinds of unsavory activities. In any sizable divorce, forensic accountants, and business valuation experts can be called upon to determine the true net worth of the individual parties and no doubt, it can get murky and take extensive time and money getting to the bottom line. My feedback really applies to this poster, or any two parties engaging this discussion in the most transparent and amicable way, in tandem with competent legal counsel.