A 'Postnuptial' Agreement Can Save Your Marriage

Looking for something original to get your spouse for Valentine's Day, after years of the proverbial red roses, saccharine cards, chocolate-covered strawberries and diamond pendants? Something that really comes from the heart?

How about a postnuptial agreement?

OK, well maybe not.

But...

Sure, it's not the easiest topic to broach with your significant other, and admittedly, it probably isn't the most romantic idea in the world. But while it may not be thing to spring on your partner on Feb. 14, it might be something to think about in your relationship, troubled or otherwise.

Arlene Dubin, a self-described matrimonial lawyer based in Manhattan, says that she has seen a "tremendous uptick" in the amount of prenuptial and postnuptial agreements being entered into by partnered Americans.

Dubin, the author of Prenups for Lovers and partner at Moses & Singer LLP, says that she believes in the merit of these agreements given the realities of divorce rates, and the frequent lack of communication between spouses on financial and other matters. Any couple could benefit from the process of discussing what one brings to a marriage, she says, including the full and open disclosure of your assets and estate planning.

Stuart S. Greenfeig, who practices family law in Maryland and the District of Columbia, agrees that more Americans are entering into these types of contracts, many of them with large assets. His clients are not necessarily those encountering problems in budding marriages either: One couple that had been married for 35 years came into his office looking to write a postnuptial agreement. He says that in past years, when he may have drawn up one postnup per year, now he can see as many as three to five.

Some reasons to enter into such a contract, according to Greenfeig:

Protection against a spouse that has wronged you in the past. This is for those who want to work on a relationship, but are afraid of having to start from scratch should things fall apart.

One partner is in the dark about finances and can feel as an equal only by having full knowledge of the other's assets.

Remarriage. Individuals entering their second or third marriages who have children from prior unions, who want to make sure that their assets go to their respective children or parents or another beneficiary can benefit from postnups. Even couples entering into their first marriages likely bring with them more worth than in the past, as the age of first-time brides and grooms continues to rise.

Didn't get around to the prenup. Who wants to ruin the love and romance of the first wooing, and the run to the altar? Sometimes couples just don't get around to it, or are unable to complete a prenup in the process. So a postnuptial agreement is the logical follow-up.

Gary O. Todd, a partner at Todd & Weld specializing in domestic relations and probate litigation in Boston, adds that another time to consider postnuptial agreements is when an interest in a family business is at stake.

Also, postnuptial agreements offer couples the option of trying to reconcile a troubled marriage, instead of immediately, and perhaps rashly, filing for divorce.

Todd says that he has "absolutely" seen postnups save marriages, alleviating the pressure of worrying too much about money. They can provide security for a non-working spouse, who knows what his or her rights will be should a marriage come to an end.

Too, postnups can serve to alter, or update previous agreements that were set in place.

According to James W. Hart, a family lawyer based in Orlando, Fla., they can serve to renew prenups set in place, tackle a change in financial circumstances, separate assets and debts for couples who don't agree on every financial move, or even replace older restrictive agreements as a couple moves to understand that they will indeed spend the rest of their lives together.

But what of their legality? Do postnuptial agreements hold water in court, should divorce ensue? Again, the answer is, more and more, that they do.

The Uniform Premarital Agreement Act says that states have to, for the most part, accept premarital agreements, says Dubin. While this doesn't extend to postnups, Dubin says that they, too, are generally accepted.

While most courts don't particularly like postnuptial agreements, Hart says, they will likely honor them, as long as they don't speak to custody of children and the waiving of alimony. And in the long run, if a marriage hasn't been saved, they can save a ton of money later on, and streamline the often painful divorce proceedings that ensue.

Some recommendations, for those who might investigate the prospect of a prenup:

Ensure that each party has separate representation, in order to guarantee the mutuality of the agreement.

Children and alimony shouldn't enter into the conversation.

Only full disclosure of assets can assure a chance at a better working marriage, and the legality of the contract should the relationship end in divorce.

Dubin says these contracts can even help heal broken marriages. One client, she says, had a husband who had let his gambling debts get to such a point that he was forced to take a lien on their apartment. The wife found out, but didn't want a divorce -- just the assurance that she wouldn't lose everything if her husband found himself at the wrong end of a bad hand.

The contract helped to rid the couple of the lien, Dubin says, and ensured her client that the apartment would always be hers, in the event of an unfortunate recurrence of the husband's gambling.

So then, postnups for Valentine's?

Sure, it isn't sexy lingerie or a trip to Paris, but the feeling of security for you and yours may just be better in the long run.

Now you'll just have to figure out how to wrap it up in a bow.