Postnups Becoming More Popular, But They’re Not For Everyone

Postnuptial agreements aren’t as silly as they might seem, writes Jacoba Urist, provided you do your homework first.

Michael Keller / Corbis

If a married couple tells you that they’ve never fought over how much something costs or whose family to visit for the holidays, either their wedding was last week or they’re lying.

Most of us duke it out the old-fashioned way: in the middle of the store, with the salesperson standing off to one side pretending he can’t hear, or in a serious game of marital Ping-Pong in the weeks before the holiday season.

But what if you took an entirely different tack? What if, instead, you each hired a lawyer to work out exactly how to spend the family’s money, or even the details of your day-to-day activities? You get this much for golf gear; I get that much for home décor. Your parents for Thanksgiving; mine for Christmas Eve. In other words, it’s marriage by postnuptial agreement.

Sure, it might sound a little silly. After all, isn’t marriage about learning how to work out these kinks together? If you need legal counsel to help you agree on a new stereo or when to see the in-laws, maybe you just weren’t compatible in the first place. But according to some of the nation’s top divorce experts, a postnup can be a productive way of dealing with all sorts of practical and financial issues that often threaten the long-term viability of a union.

In fact, postnups are more popular now than ever, and not just with the super-rich or Hollywood types.

The only nationwide study to date on postnups, released in 2007 by the American Academy of Matrimonial Lawyers, found that nearly half of the lawyers polled reported an upswing in the number of clients asking for them. AAML President Ken Altshuler says that since then, his own informal polling has shown a steady increase in the number of couples across all age groups drafting postnuptial agreements.

“I’m starting to see these in all sorts of situations,” he says. “From a couple where the husband had a drinking problem, and after the third DUI, his wife demanded one, to a case where a father told his daughter [that] she would be cut out of his will if her husband didn’t sign a postnup.”

Just as prenups did about twenty years ago, postnups are growing in popularity—among all income brackets—as more and more couples get comfortable with the idea of hiring a lawyer to work out the stickiest issues in their relationship.

So what exactly do postnups cover? Pretty much anything you can imagine.

Sanford Ain, a leading divorce attorney in Washington, D.C., has seen it all: from couples who want to specify when, where, and how often they’ll be taking vacations, to who gets stuck with weeding and raking the backyard.

Ain—who estimates that about 10 percent of his clients request a postnup—says such lifestyle provisions are still in the minority. Still, he says, the economic downturn has led to the recent uptick in postnuptial agreements, as both husbands and wives look to secure their finances in case the marriage doesn’t make it through the recession.

“The value of everyone’s assets has diminished,” Ain tells The Daily Beast. “In many cases, people want to know in writing what their financial state would look like in the future if they got divorced.” In other words, a rising tide may lift all boats, but a falling one sure makes people divvy up the lifeboat space in advance.

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Other lawyers say a postnup can serve as a sort of reset button for a marriage. If a spouse suddenly comes into a financial windfall—an inheritance, say, or a fancy new salary—he or she (or both of them) may want to reevaluate the financial terms of the relationship.

Paula Szuchman, co-author of It’s Not You, It’s the Dishes, says that the study of economics—both micro and macro—can reveal what makes a happy marriage.

“People are kidding themselves if they think love is enough to carry a marriage for fifty years,” Szuchman wrote in an email. Her research found that people often have trouble designating specific chores, and that seemingly small things—like how much to save every month or who does the dishes—can ultimately wear a couple down. “There are hundreds of negotiations that are going to take place over a marriage,” Szuchman explains. A postnup can be a good way to arrange an enforceable system that helps arbitrate disagreements.

But postnups don’t always help make things clearer. In the ongoing divorce proceedings between Heidi Klum, the supermodel, and Seal, the singer, Klum has reportedly argued that their postnup meant that she didn’t have to split the couple’s joint assets, as she otherwise would have to under California law. With Klum’s worth estimated at around $70 million and Seal’s a relatively shoddy $15 million, it’s no wonder that it only took a few days for his lawyer to argue that the Seal was entitled to Heidi’s earnings during the marriage, making no mention of the couple’s purported postnup.

Stories like this are precisely why Stacy D. Phillips, one of L.A.’s top divorce attorneys (whose bio reads like a page from a celeb mag), has declined drawing up some big postnuptial agreements over the past few years. When colleagues agree to do them, she’s left scratching her head. “Do I believe in them?” she says. “Absolutely. But they’re just too risky in California.”

Phillips has seen plenty of cases where a postnup would help release pressure on a shaky marriage. Some people want to stay together despite some pretty hefty financial issues, such as a spouse’s spending or gambling addiction. But at the end of the day, Phillips says, postnups risk giving couples a false sense of security over their love life, their legal life, or both. “There’s just too much discretion left to the courts,” she says.

There’s no question postnups are gaining steam, and in some cases, they can help couples get through a bad patch. But most of us are still probably better off slugging it out ourselves—without a lawyer. Just think: you’ve still got six good months to fight about where to spend Thanksgiving.