The Postnup

12.03.13

Why Stay-at-Home Moms Should Demand Postnuptial Agreements

It’s no surprise that Rupert Murdoch and Wendi Deng had a prenup. But a postnup? That’s what some attorneys recommend for spouses who put their career on hold to have kids.

While media mogul Rupert Murdoch and his third wife, Wendi Deng, were undoubtedly the stars of their recently settled divorce drama, they shared the stage with some headline-grabbing costars. The most notorious may be a certain politician, whose rumored closeness to Deng was cited by certain gossips as playing a role in the breakup. The other costars were the usual cast of characters that tend to make appearances in high-profile divorces: high-profile attorneys and, of course, a prenup. But the Deng-Murdoch split also featured an up-and-coming player, the postnup.

Prenuptial agreements have become so common among the 1 percent they are considered practically a given. But postnuptial agreements, those negotiated after a marriage has already taken place, are still rarities and an object of curiosity for much of the population. According to experts, however, their popularity is growing. In a 2012 survey conducted by the American Academy of Matrimonial Lawyers, 51 percent of divorce attorneys cited a rise in postnuptial agreements during the past three years. Perhaps an even more interesting number is the 36 percent of attorneys who noted an increase in wives initiating the requests.

Indeed, all women who do not have prenuptial agreements and who leave a lucrative career to become stay-at-home mothers should request a postnuptial agreement, said Jeff Landers, a financial expert and author of Divorce: Think Financially, Not Emotionally. “I have seen too many women get the short end of the stick,” Landers said. “The husbands turn around and say, ‘Well, it’s not my fault. It was your choice. You wanted to have children. You wanted to stay home with them. You could have gone out and worked, and in the meanwhile I, the husband, was busting my rear end, and why are you entitled to any of this?’ Or they say, ‘Before you stayed home you were making $50,000 a year, so you can certainly go out and get a job for that amount, if not more.”

But for many stay-at-home mothers trying to regain their footing after a divorce, it’s not that easy.

In her landmark book The Price of Motherhood, Ann Crittenden suggests that educated women who stay at home to raise children are subjected to a “mommy tax,” forfeiting approximately $1 million in earnings over a lifetime. For that reason, Landers says couples should reach an agreement that compensates the spouse forfeiting their highest-earning years for child rearing should the marriage end.

“You are theoretically giving up a lot that you may never be able to recoup if you’ve been out of the work force for 10 years,” Landers said. “Besides the fact that you’re losing all of your contacts and networking opportunities, your résumé is going to have a huge gap on it, your skills, with changes in technology and social media. You may not be prepared 10 years later to come back close to anywhere where you were before.”

“You would never have enough [money] that would make you feel like you were made whole for giving up your career.”

Prenuptial agreements are largely seen as the purview of the wealthy, but Landers makes a compelling case that postnuptial agreements can be important for any working couple. A recent New York Times article seems to reinforce his argument. The piece provides updates on women the paper profiled 10 years ago, when they left lucrative careers to raise children full-time. One woman who left a job at which she earned $500,000 a year found herself divorced and earning just over a fifth of her former salary a decade later.

Raoul Felder, a New York-based divorce attorney who has represented former mayor Rudolph Giuliani, among other bold-faced names, says he agrees that postnups can help protect working women turned stay-at-home moms. Echoing Landers, Felder said women often get the “bad end of the stick” when they leave careers and become financially dependent on a spouse. “Hopefully the prenup took care of it” in the event of a divorce, Felder said, but he called the postnup “the last train that’s leaving the station.”

Still, attorney Laura Wasser, who has represented celebrities Britney Spears, Kim Kardashian, Angelina Jolie, and Ryan Reynolds in their divorces, appears skeptical about postnups. Wasser said that while she has noticed a slight increase in the practice in recent years, she has seen a bigger uptick in prenups. The two most likely scenarios in which requests for postnups tend to arise, she said, are as “a way to save the marriage or a way to plan for the divorce.” A common example is if one spouse has an affair and wants to save the marriage. The spouse who has been cheated on may demand to renegotiate the prenup as a condition of staying, which results in a postnup.

Wasser, the author of It Doesn’t Have to Be That Way: How to Divorce Without Destroying Your Family or Bankrupting Yourself, noted that in California, where she practices, women who become stay-at-home mothers are relatively protected by the state’s community property laws, which require that income generated and property acquired during the marriage be split upon dissolution of the marriage, whether the other spouse worked outside the home or not. Of course there are exceptions, such as when a prenuptial agreement provides for settlement terms that differ from the relative generosity of community property laws.

Asked if postnuptial agreements are a smart tool for spouses, usually women, who do not live in community property states and leave a successful career and sacrifice their highest-earning years to care for children, Wasser offered a blunt answer: “You would never have enough [money] that would make you feel like you were made whole for giving up your career. That’s why we women have such tough choices to make. That’s why I’m a full time working mom.”

She elaborated: “The fact is that giving up your career to raise kids who, let’s be honest, by the time they’re 5 or 6 are in school all day long—you need to make that choice. If you’re in the position to make a decision and you can figure out a way for your spouse to compensate you so that you’re going to feel better about it, then by all means, but I feel like it may not make enough of a difference for you because it’s about more than the money.”

She did, however, concede that such an agreement really makes sense under certain circumstances. For instance, a successful model who may be unable to work during pregnancy may ask to be compensated in a postnuptial agreement if such an issue is not addressed in a prenuptial agreement.

One thing all of those interviewed did agree on is that discussing prenuptial and postnuptial agreements is never easy. Dr. Jeff Gardere, a therapist who counsels couples and has an app offering advice for those going through a divorce, said an inability to discuss and reach agreement on a prenup or postnup is indicative of much larger problems in the relationship. They become symptoms of some “deeper issues” and show “there are fundamental disagreements that need to be addressed,” he said. Mediation and counseling can be good forums for tackling such issues, he said, stressing that a neutral location with a neutral third party can often help.

Ultimately, any discussion of postnups or prenups with one’s spouse or spouse-to-be is “not sexy,” said Wasser. “Not romantic. Definitely need a bottle of wine to get started, but worth having.” She then added, with emphasis, “for sure!”