No one sets out to join the divorce club.
Believe me, as a divorcée — and coach for women during and after the ordeal — I know that. We all take the plunge with dreams of unconditional love, a warm home and the financial security of being part of a couple. It’s just that marriages don’t last almost half the time, and being realistic about this is crucial. That’s why women — and men for that matter — who didn’t sign a prenuptial agreement should get a postnuptial one as life changes.
We don’t have to look far to see how marriages unravel. It’s playing out live on television during the Johnny Depp-Amber Heard defamation case, in which Depp is suing his ex-wife Heard on the grounds that she defamed him when she wrote an op-ed in The Washington Post about being a survivor of domestic abuse. Heard has denied the allegations and filed a defamation countersuit against Depp for $100 million, claiming he is leading a smear campaign against her.
If a couple decides to reconcile after an affair, a partner can ask the unfaithful one to sign a postnup providing financial or other compensation if there is a repeat offense.
The couple didn’t have a prenuptial contract, and Depp claimed during the ongoing trial that when he brought up a postnuptial agreement, which is drawn up after a couple is married instead of before, it sparked a violent fight.
“I tried to calm her down and say that I was not out to screw her over or put her in a position that was uncomfortable. These were stock, normal things to do,” Depp testified about his discussion with Heard about a postnup, but he claimed the confrontation just escalated. In her testimony, Heard said she was the one who initiated a postnuptial deal.
Whoever’s idea it was, it’s safe to assume that a postnup wouldn’t have saved Depp and Heard from the acrimony of their post-divorce lives or kept them out of the courtroom. But that doesn’t mean it wouldn’t have been useful as they negotiated their split, or that it’s not helpful for other couples. While the prenup gets more attention, the mention of a postnup in the Depp-Heard trial could bring more attention to a tool many couples could benefit from.
The key difference between a prenuptial agreement and a postnuptial one is simple: timing. A postnuptial agreement is a legally binding document drafted after the marriage vows that addresses the terms of a divorce. Just like prenups, postnups can specify who walks away with what property following a death or divorce, as well as specify the amount of alimony. They also can safeguard who inherits family wealth or protect business property and income.
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“None of us had protected ourselves in this way,” I thought on the drive home from a recent meeting of a divorced women’s support group I run. Not a single one.
We had all entered our marriages assuming our partner had our back, everything would work out and we didn’t need financial protection from the person who claimed to love us the most. We certainly didn’t require a “business-like” formal prenuptial contract when we were in love! As years passed and some women decided to stay home with the kids, they thought it was a joint decision with their husbands — never considering the personal consequences if the team split up.
“I’ve been taking care of the house and the family while he built his career in Manhattan, but now that we’re splitting, what do I do?” asked a woman at the meeting who is in her late 50s and had given up her career when she had children. She was far from alone.
When new issues and problems come up, a couple who don’t see a need for a prenup could find a postnup useful. One sadly common issue is infidelity. If a couple decides to reconcile after an affair, a partner can ask the unfaithful one to sign a postnup providing financial or other compensation if there is a repeat offense.
One woman I know, who asked that her name not be used out of privacy concerns, entered a postnup after her attorney suggested one following her husband cheating. She and her ex signed the agreement as they were thinking about reconciling because she wanted to be protected if it happened again. And it did.
“I am happy I had it,” she told me. “Divorces are emotional and such a difficult journey, so this is something that can alleviate some of that.”
She described how the postnup provided for them to legally separate rather than divorce so she could stay on his health insurance. “There was a recognition that I raised the children and had put my career on hold,” she said.
She had two words for people who are considering a postnup but may be on the fence: “Protect yourself.”
I wish I had.
In a world where women’s reproductive rights could be taken away, our family court system is broken and women still earn 82 cents for every dollar men earn, when a woman sacrifices for the “team” (because she usually is the one who does) she absolutely must be compensated for that. This is especially important because “more than one in three families headed by unmarried mothers lived in poverty in 2019,” according to the National Women’s Law Center. If you’re a woman and think you’ll get a fair shake in divorce court that includes some kind of compensation for your selfless contribution to the family unit, think again.
“The family court system is awful. The one with the most money wins, or it comes down to the luck of who you get as a judge,” asserted Sandra Radna, a divorce attorney in New York. “It doesn’t always seem to be fair.”
That’s where a legal agreement that addresses developments that cropped up after starry-eyed lovers tied the knot comes in. “As soon as you give up financial control to your spouse, you give up your independence,” Radna told me. “And once you are put in that position, it’s hard to reverse it.”
The American Academy of Matrimonial Lawyers has seen an increase in couples signing postnuptial agreements these days. Half of divorce attorneys said they were drafting more of them in the organization’s 2015 survey. The most common issues covered were property division, alimony or spousal maintenance, and retirement accounts.
“One reason to have a postnuptial is to address something that had not been considered before,” Cary J. Mogerman, president of the American Academy of Matrimonial Lawyers and a practicing attorney in St. Louis, told me. “It has to be something in which both parties have an interest. Some enter into an agreement like this to save an already troubled marriage where circumstances are putting pressure on the viability of that partnership.”