Studies show that divorces are back on the rise after years of a steady decline. Many experts attribute the spike in filings due to COVID-19 and the result of quarantine and stay-at-home orders. No matter the reason, as a collaborative family law attorney in central and eastern North Carolina, I understand that sometimes divorce canâ€™t be avoided.
In addition to the increasing number of separations and divorces, Iâ€™ve also noticed another trend in family law pertaining to marriage. Postnuptial agreements are becoming increasingly popular across the United States and in North Carolina. There are several reasons why Iâ€™ve seen more of them in recent years, and I think a lot of it has to do with married couples being aware of their situation and understanding that divorce could be a reality for them. Many of these spouses are adult children of divorce and know the conflict and tension that their family experienced when their parents divorced. As a result, they may want to prevent that from happening in the event that they choose to end their marriage. In my book, The Cure for Divorce Culture, I share statistics about how litigated divorce impacts children for generations. As researched, children of litigated divorce are 50% more likely to get divorced if one spouse is from a divorced home, meanwhile they are 200% more likely to get divorced when both spouses come from a divorced home. As a way to avoid these statistics, I practice collaborative family law, which is an alternative dispute resolution proceeding that keeps divorcing spouses out of court. Collaborative law is considered a healthier way to divorce for everyone involved, including the coupleâ€™s children, because it encourages open communication, negotiation, and conflict resolution. Many couples are also choosing using the collaborative process to develop a postnuptial agreement to ensure that if their marriage ends in divorce, it will be with reduced conflict and decreased stress.
Many marriages are â€“ shall we say â€“ turbulent. And during those times, a postnuptial agreement â€“ or postnup for short â€“ can be a marriage saver. This allows a fighting couple to make binding decisions for what would happen if they separated while theyâ€™re still married and trying to work it out. Upon separation, a postnup can take the war zone out of the equation and allows the couple to focus on resolving issues without the fear of divorce culture. It can also help couples avoid expending all their energy on separation and lets them focus on parenting, work, and improving their lives rather than destroying them. It is a way to move forward and to not be afraid.
A postnup is another resource that many people don’t know about. We are promoting efforts through collaborative law reform and shared parenting; however, there is much more work to be done. Iâ€™ve been working with human resources offices across the country and directing them on how to avoid missteps when an employee goes through a divorce, as well as many other strategies to change the warlike culture of divorce. Our efforts are to save children from the disastrous effects and to thwart the continual rise in suicide our country is facing. This is largely attributed to divorce cultureâ€™s aggressive attack and breakdown of the family unit.
You may be wondering, â€œwell, isnâ€™t that what a prenuptial agreement is for?â€ The answer is yes, it is. (Click here to read a blog I wrote about prenuptial agreements.) However, a prenup is created and signed before the marriage and a postnup is created and signed after the marriage. A postnup gives the couple an opportunity to create a similar agreement if they didnâ€™t have one drafted before getting married. It can also address situations that have changed over the course of the marriage. This includes topics like finances, assets, and/or children. It may be a difficult or awkward topic to approach if youâ€™re happily married; however, there are endless benefits to a postnup and many couples Iâ€™ve worked with say having this in place has actually made their marriage stronger. Here are my top five reasons why you may want to consider a postnuptial agreement:
- Children are Involved
If you and your spouse have children, you may be interested in having a pre-drafted parenting agreement in the event that you separate and/or later divorce. This document can be part of a postnup. At AN|R Law, we encourage our clients to use the collaborative process to determine the terms of their postnup agreement. In collaborative law, parenting plans and shared parenting are of the utmost importance. Using this method to develop a postnup agreement that keeps the wellbeing of your children in mind will help to ensure that you and your spouse have a healthy co-parenting experience. Postnups are also common for spouses who have children from previous relationships. The agreement can ensure that those children have asset protection.
- Disparities in Wealth
During a marriage, many couples experience a change in financial positions. This can vary based on unique situations such as careers, job promotions, or inheritances. In some cases, both partners are employed when they start their marriage yet as time goes on, one spouse stops working while the other continues to financially support the family. While this may be a mutual decision and agreed upon at the time by both spouses, it could cause contention during divorce. Having a postnup can address these types of disparities and determine spousal support, if ever needed. Another common financial topic in postnuptial agreements is if one spouse received a large inheritance of money, valuables, or property. A postnup would be helpful in this situation to protect the ownership of the asset(s) in case the marriage ends in divorce.
- Ownership of Businesses or Properties
Similar to wealth accumulation during a marriage, one or both spouses may also accumulate businesses and properties. Much like a coupleâ€™s personal home, anything in addition is considered an asset in the marriage, which would need to be divided during a divorce. A postnuptial agreement can outline a plan and remove the uncertainty of what happens to these assets if a divorce is in the future. These plans can also be useful when the couple owns a business or rental property together. Distributing assets such as a business or property during a divorce can be difficult and complex, so it will save you time and money to already have this determined through a postnup.
- Large Martial Debts
Throughout a marriage, debts and liabilities can be incurred. These are typically the responsibility of both partners. However, a postnuptial agreement can help to manage any current and potential debt and reduce the joint liability. For instance, if large debts are incurred â€“ perhaps from sources like credit cards, gambling, property, or subscriptions â€“ it may be in the coupleâ€™s best interest to have this detailed in the postnuptial agreement to avoid joint liability. In the agreement, the couple can also explain how they will handle this during a divorce and how theyâ€™ll divide the debt during a split.
- Issues with Infidelity
Infidelity is an issue in many marriages. In fact, prevalence rates for infidelity in American marriages range from 20% to 40%, according to research from the American Psychological Association. While infidelity is a common reason for divorce, some couples choose to work through the issues and stay together. When they make the decision to save their marriage after infidelity, they may want to consider a postnuptial agreement as part of the process. Oftentimes, this agreement can be used as an additional pledge by the cheating spouse to remain faithful. On the other hand, a postnup can also lay out the plan and process for divorce proceedings in the event that the couple chooses to end their marriage.
Whether there is a specific reason for a postnuptial agreement or not, AN|R Law: A Negotiated Resolution can help you create this type of agreement. We know these conversations might be difficult; however, we believe that it is healthier to have these discussions while you and your spouse are in a good place in your marriage rather than waiting for a divorce proceeding. You and your partner are more likely to make informed, rational, and sound decisions that are driven by logic during a postnup instead of decisions driven by emotion, stress, or conflict during divorce.
With over 10 years of experience, my team and I are skilled in all aspects of family law. We will guide you through the process with compassion and understanding. AN|R Law has four North Carolina locations in Greenville, Raleigh, Beaufort, and Wilmington to serve you and your family. To learn more about working with AN|R Law for postnuptial agreements, please reach out to our office confidentially online by clicking here or by calling to schedule a consultation: 252-702-4376