Take a Pass on The Postnup

When it comes to marriage, I’m like that kid in The Sixth Sense. Everywhere I look, I see wedded people. But when I gaze upon newlyweds, I don’t see hearts and flowers; I see law firms banging out contracts in an effort to inoculate both husband and wife against the death of love and the inevitable pain, greed and bad behavior that follow. According to Arlene Dubin, a divorce lawyer in New York City and author of Prenups for Lovers, about 20% of marrying couples pursue prenuptial agreements, outlining everything from how assets should be divided in case of divorce to how often a couple will go on vacation or have sex.

Couples who missed the chance to negotiate their divorce ahead of time can now develop property settlements after their wedding day. It’s done with a “postnup”–a legal agreement that spells out how assets will be divided in case of divorce or death. Those who most often pursue postnups do so as the result of a major change in their financial picture, such as the arrival of an inheritance. With more couples blending families, a postnup can mandate that a mother’s assets pass directly to her biological children, not the stepkids. Or a husband can cap the total amount his wife would receive from his business assets in case of divorce. Postnups can also protect one spouse from financial obligations flowing from a legal judgment against the other’s business.

Dubin says she would rather help couples negotiate settlements during the marriage than after it is already breaking up. But she warns that postnups may be held to a higher standard than prenups by state courts because of the possibility that the more vulnerable spouse has been coerced into signing. Minnesota, for instance, allows postnups only if each spouse is worth at least $1.2 million and the couple stay married for two years after signing.

Neil Warren, marriage counselor, author of Finding the Love of Your Life and happy veteran of a 42-year marriage, told me that the only thing he likes about postnups is that they get couples to talk. But to get legal about it, he says, “must mean that at least one spouse believes that the marriage isn’t working.”

Maybe it takes a divorced person like me to be a true softy on marriage: even after talking at length with lawyers about postnups, I still want to believe that a couple can share their assets and have faith in a married future, financial complications and all. Couples should fully disclose their assets and debts, discuss and even write down their goals, but then they should stick the piece of paper in a drawer and concentrate on their lives. Without lawyers.

For more on postnups, visit www.equalityinmarriage.com