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Latest Marriage News

9-11-2011 to 9-17-2011

The latest marriage news:

The U.S. ranks in at #5, but can you guess which country has the highest international divorce rate?
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Michigan postnuptial agreements are divided into 3 categories according to enforceability.

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This week’s most popular marriage advice based on Twitter retweets.

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Different Types of Postnuptial Agreements Equal Different Results in Michigan

Michigan law divides postnuptial agreements into three categories. The requirements and enforceability of a postnuptial agreement depends upon its classification. First, postnuptial agreements that are entered by spouses who have separated will be upheld as settlement agreements. Second, postnuptial agreements that deal with inheritance rights are valid, provided the agreement is fair, equitable, and has consideration. However, the third category, postnuptial agreements that deal with divorce rights, entered by spouses who are not already separated, are unenforceable in Michigan.

As recently as 2008, Michigan courts declared unenforceable those postnuptial agreements that are entered before separation and deal with property distribution at divorce. In Wright v. Wright, the court reiterated Michigan’s prohibition on spouses entering contracts that anticipate or encourage a future separation or divorce. Such contracts were held to be against public policy, relying on case precedent from the nineteenth and early twentieth centuries.

Generally, alimony and property settlement provisions in postnuptial agreements are considered to anticipate or encourage future separation. As stated by the Wright Court, an example of when this occurs is if the postnuptial agreement leaves a spouse in a better position in the event of a future divorce. Under this theory, the postnuptial agreement at issue in Wright was held to encourage future separation or divorce. The agreement attempted to protect the husband’s premarital assets and retirement accounts. The agreement also declared all marital property that required substantial financial investment from the husband, including the marital home, was to be the sole property of the husband at divorce.

The primary issue appears to be whether separation or divorce is contemplated when spouses enter a postnuptial agreement. Michigan did uphold the validity of a postnuptial agreement at divorce, even though it was entered before the spouses separated and it did not deal solely with inheritance rights. In the 1965 case of Randford v. Yens, a divided court upheld the postnuptial agreement because it found the agreement did not anticipate or encourage divorce. The purpose of the postnuptial agreement in Randford was to determine what property rights already existed, not to change or define future property rights. Both spouses had substantial premarital property and a conflict arose as to the status of a particular piece of property. The postnuptial agreement was entered to eliminate confusion regarding what property was separate and what was marital.

While states across the nation are changing their public policy to reflect approval of postnuptial agreements, Michigan appears reluctant to change their long-standing public policy. While the Wright case was decided by the intermediate appellate branch of the Michigan judiciary, the state’s highest court declined to address the issue. The Supreme Court of Michigan denied the original appellate request and the request for reconsideration.

Originally, Michigan viewed prenuptial agreements as a way to circumvent the legal duty to support a spouse; a view the court still holds regarding postnuptial agreements. Michigan’s support of prenuptial agreements is not likely to influence the courts’ view on postnuptial agreements in the near future. The public policy considerations that allow prenuptial agreements to be enforceable are not easily applicable to postnuptial agreements.

When Michigan changed its view on prenuptial agreements, it was for two main reasons, according to Rinvelt v. Rinvelt. The court stated that without the ability to organize finances prior to marriage, people would choose to stay in informal relationships rather than get married. Additionally, the court reasoned that dealing with finances prior to marriage would foster permanency of the marriage. These viewpoints would be hard to attach to postnuptial agreements.

Without a major change in public policy or the legislature providing for postnuptial agreements by statute, a change in enforceability of postnuptial agreements in Michigan is unlikely. Michigan has classified pre-separation postnuptial agreements as different from other marital agreements. Under current law, postnuptial agreements that anticipate or encourage a future separation or divorce are unenforceable.

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Weekly recap 9-3 to 9-10

Highlights of the past week:

What can’t go into a postnuptial agreement and why – child support, custody, and visitation.
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The answers to common questions about marital mediation.
Tips for choosing a marital mediator.
Examples of common marital difficulties that marital mediation can help resolve.

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For real time updates, friend us on Facebook or follow us on Twitter.

Postnuptial Agreements are for Parents, Not Children

Parents naturally want to do all they can to take care of their children. Sometimes this instinct leads to spouses trying to create contracts about how they will raise their children if they ever divorce. The hope is the family can be spared from a lawsuit if the parents can agree in advance. However, enforceable postnuptial agreements do not resolve issues surrounding children. They are used to define financial rights and obligations. As a general rule of thumb: if it does not deal with property, it does not belong in a postnuptial agreement.

It might seem strange that parents cannot include provisions for raising children in a postnuptial agreement. Every day parents make decisions about their children’s lives: what they eat, what time they go to bed, whether they can go to a friend’s house, etc. The difference is those daily decisions don’t affect the legal rights of the children. On the other hand, child custody, support, and visitation do.

The right to child custody, support, and visitation does not belong solely to the parents. Therefore, a private contract between the parents is insufficient to resolve children’s issues. Instead, the law balances the rights of both of the parents, the children, and the state. Each parent has a right to raise their child. Every child has the right to be raised and to have a relationship with both parents. The state has the right to oversee child rearing because of its interest in protecting children from harm.

A postnuptial agreement cannot eliminate child support payments or establish the amount that will be paid. Child support may seem like a property right since it deals with money. However, the law does not view child support as a financial right. Child support deals with the right of the child to benefit from both parents’ income. States recognize that every parent has the responsibility to financially assist in raising their child to the fullest extent that they are able. The state’s child support guidelines establish the amount of child support that is paid, not the parents.

A postnuptial agreement cannot determine who the child will live with and if the other parent will see the child. Child custody and visitation is determined by the “best interest of the child” standard. There is no exact definition of what “best interest of the child” means. There are many factors. Ultimately, it involves whether the child is in a healthy, stable, and safe environment in which the child’s needs are being met and relationships with both parents are being preserved. A judge must determine the type of custody and when visitation is appropriate in every divorce case in order to ensure that the child is in a good environment. Even when parents agree on custody and visitation, they are required to obtain approval from the judge.

Public policy prohibits spouses from determining child custody, support, and visitation in postnuptial agreements. Children are not a commodity that can be traded between parents and cannot be used as a bargaining tool. If your postnuptial agreement contains provisions for children’s issues, the court may ignore those parts and still uphold the rest of your agreement or the court may invalidate the entire agreement. The best decision is to simply not include unenforceable children’s issues in a postnuptial agreement.

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Weekly Recap: 8-20 to 8-26

The latest content added to maritalmediation.com

A comparison of postnuptial agreement law including the leading cases and statutes on postnuptial agreements in all US jurisdictions.
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Debt Considerations for Postnuptial Agreements

Spouses can use postnuptial agreements to manage debt and avoid joint liability. Through the postnuptial agreement, spouses define which debts and assets are separate and which are marital. This establishes who is responsible for specific debts. However, it may not control what assets creditors are readily able to collect against if there are joint debts (see below). If you enter a postnuptial agreement for debt liability purposes, the agreement must be written in light of debt collection law, and the terms of the agreement must reflect the way you and your spouse actually handle finances.

Both spouses are responsible for marital debt. Separate debt is typically only the responsibility of the spouse who incurred the debt. Generally, the separate property of one spouse will not be used to satisfy the separate debt of the other spouse. However, this requires more than simply saying that finances are separate in a postnuptial agreement. You and your spouse must actually treat your finances as separate in order to be protected from liability. If not done correctly, there could be unanticipated difficulties, especially if debt problems escalate.

Postnuptial agreements are contracts between spouses. As a general concept of contract law, a contract cannot bind those that are not parties to the agreement. This means that if both spouses were jointly liable on a debt, there needs to be another agreement with the creditor to officially change liability to only one spouse. Even when debt is created after a postnuptial agreement, your behavior could eliminate debt protection. If you and your spouse do not treat your finances as separate, then outsiders will not be required to either. In this case, a creditor could contest the separate status defined by the postnuptial agreement because your actions imply that finances are not separate.

Problems become even more abundant if one spouse needs to file for bankruptcy. The bankruptcy court will look beyond the postnuptial agreement and evaluate all circumstances surrounding debt and assets. Again, if you and your spouse are not acting like your finances are separate, then the court does not have to treat your assets as if they are separate. Separate property of both spouses will be investigated, and the separate status can be disputed by creditors. The bankruptcy court, through the bankruptcy trustee, has the power to track where debt and assets originated. The bankruptcy trustee can inquire as to whether, in recent years, funds were comingled, if a spouse contributed to the purchase of the other’s assets, and if a spouse’s assets were used to repay any debts of the other spouse.

Bankruptcy courts have held that certain postnuptial agreement had the effect of concealing assets and preventing payment of creditors. In these situations, it was when the parties entered the postnuptial agreement in close proximity to when the bankruptcy was filed. The courts were then able to avoid the asset transfers between the spouses because the transfers had the effect of defrauding creditors. Even in situations when the transfer is not fraudulent, the bankruptcy trustee can avoid certain property transfers.

When entering a postnuptial agreement in response to debt, spouses need to be careful of both state and federal fraudulent concealment (i.e., fraudulent conveyance) statutes. To be enforced, a postnuptial agreement cannot be interpreted as a means of defrauding creditors. Since proving actual fraud is extremely difficult, courts rely on circumstantial evidence. Courts have used a variety of situations that may occur in postnuptial agreement property transfers to prove fraudulent concealment. These include gifts of substantial value to family members, continued possession of property after the transfer of title, and transfer of property for substantially less than market value.

One of the best ways to defend against a claim of fraudulent concealment is through the passage of time. Courts are much less skeptical of a postnuptial agreement being used to improperly shield assets when the agreement was not entered contemporaneously with debt collection actions. If a postnuptial agreement is to be useful in protecting against debt liability of your spouse, it is best to enter the agreement as soon as possible. If you wait until things get really bad, it may be too late to protect yourself.

Enforceability of Postnuptial Agreements: A State by State Comparison

Postnuptial agreements are contracts that define the financial rights and obligations of spouses. Each state sets its own laws regarding the enforceability of postnuptial agreements. This chart contains basic information about the general requirements for an enforceable agreement in each U.S. jurisdiction.*

State	Are postnuptial agreements enforceable?	What statute or case governs postnuptial agreements?	What are the general requirements for a valid and enforceable postnuptial agreement?
Alabama	Yes	Statute: Ala.Code 1975, § 30-4-9Case: Tibs v. Anderson, 580 So.2d 1337 (1991)	In Alabama, there are two tests that may be applied. A postnuptial agreement will be upheld when if it had consideration and is fair, just, and equitable, or if the postnuptial agreement was voluntarily entered with independent legal advice and full disclosure of assets.
Alaska	There is no clear law regarding the enforceability of postnuptial agreements
Arizona	Yes	Case: In re Harber’s Estate, 449 P.2d 7 (1969)	There are four requirements for an enforceable postnuptial agreement in Arizona: (1) both spouses must enter the postnuptial agreement voluntarily with full knowledge of their rights; (2) there is no evidence of fraud, coercion, or undue influence; (3) both spouses completed full financial disclosure; and (4) the postnuptial agreement is fair and equitable.
Arkansas	Yes	Case: Stewart v. Combs, 368 Ark. 121 (2006)	In Arkansas, postnuptial agreements are governed by standard contract principles, with no additional requirements specific to postnuptial agreements.
California	Yes	Statute: Cal.Fam. Code § 721Case: In re Marriage of Burkle, 139 Cal.App.4th 712 (2006)	There are three requirements for an enforceable postnuptial agreement in California: (1) there is no unfair advantage; (2) there is no undue influence; and (3) there is full and fair financial disclosure.
Colorado	Yes	Statute: C.R.S. § 14-2-304Case: Matter of Lewin’s Estate, 42 Colo.App. 129 (1979)	Colorado has two requirements for an enforceable postnuptial agreement: (1) both spouses complete a full and fair disclosure of assets; and (2) both spouses understand the effect of the postnuptial agreement.
Connecticut	Yes	Statute: C.G.S. § 46b-36Case: Bedrick v. Bedrick, 300 Conn. 691 (2011)	There are four requirements for an enforceable postnuptial agreement in Connecticut: (1) the agreement must comply with general contract principles; (2) the agreement was made voluntarily; (3) both spouses give full, fair, and reasonable financial disclosure; and (4) the agreement is fair and equitable at the time of execution and not unconscionable at the time of enforcement.
Delaware	Yes	Statute: 13 Del.C § 311Case: Robert O. v. Ecmel A., 460 A.2d 1321 (1983)	Delaware postnuptial agreements must satisfy three requirements to be enforced: (1) there is no undue influence, fraud, or coercion; (2) the agreement is fair and equitable; and (3) both spouses completed full financial disclosure.
District of Columbia	There is no clear law regarding the enforceability of postnuptial agreements
Florida	Yes	Case: Casto v. Casto, 508 So.2d 330 (1987)	In Florida, there are three requirements for an enforceable postnuptial agreement: (1) there is no fraud, deceit, duress, coercion, misrepresentation, or overreaching; (2) the agreement is not unreasonable or disproportionate; and (3) both spouses completed full and fair financial disclosure or had knowledge of the other’s finances.
Georgia	There is no clear law regarding the enforceability of postnuptial agreements.
Hawaii	Yes	Statute: HRS § 572-22Case: Epp v. Epp, 80 Hawai’i 79 (1995)	In Hawaii, postnuptial agreements are governed by standard contract principles, with no additional requirements specific to postnuptial agreements.
Idaho	There is no clear law regarding the enforceability of postnuptial agreements.
Illinois	Yes	Case: In re Marriage of Tabassum and Younis, 317 Ill.App.3d 761 (2007)	In Illinois, postnuptial agreements are governed by standard contract principles, with no additional requirements specific to postnuptial agreements.
Indiana	Yes	Case Law: Beaman v. Beaman, 844 N.E.2d 525 (2006)	Postnuptial agreements will be enforced in Indiana when the agreement is entered voluntarily and it is not be inequitable.
Iowa	No	Statute: I.C.A. § 597.2Case: Estate of Shaffer v. Hewer, 766 N.W.2d 648	Iowa does not enforce postnuptial agreements. Public policy prohibits contracts between spouses that deal with the property rights.
Kansas	Yes	Case: Crosby v. Crosby, 188 Kan. 274 (1961)	In Kansas, postnuptial agreements are enforceable when they meet the following criteria: (1) the agreement was fairly and understandingly made; (2) the provisions are just and equitable; and (3) there is no fraud or overreaching.
Kentucky	Yes	Case Law: Rice v. Rice, not reported in S.W.3d (2004)	There are four requirements for an enforceable postnuptial agreement in Kentucky: (1) there agreement was entered voluntarily; (2) there is no mistake, misrepresentation, or nondisclosure of material facts; (3) it is not unconscionable when created; and (4) changed circumstances do not make enforcement unfair.
Louisiana	Yes	Statute: La.Civ.Code art. 2328, 2329Case: Williams v. Williams, 760 So.2d 469 (2000)	Postnuptial agreements will be upheld in Louisiana require judicial approval, unless the spouses lived in the state for less than 1 year. Additionally, the terms of the postnuptial agreement must not violate public policy.
Maine	There is no clear law regarding the enforceability of postnuptial agreements.
Maryland	There is no clear law regarding the enforceability of postnuptial agreements.
Massachusetts	Yes	Statute: M.G.L. 209 § 2Case Law: Ansin v. Craven-Ansin, 457 Mass. 283 (2010)	There are five requirements for an enforceable postnuptial agreement in Massachusetts: (1) both spouses had the opportunity to obtain separate legal counsel; (2) there was no fraud or coercion; (3) both spouses disclosed all assets; (4) both spouses knowingly and explicitly waived rights in writing; and (5) the terms of the agreement are fair and reasonable at the time of execution and enforcement.
Michigan	No	Case: Wright v. Wright, 279 Mich.App. 291 (2008)	In Michigan, public policy prohibits spouses from entering postnuptial agreements that anticipate or encourage a future separation or divorce.
Minnesota	Yes	Statute: Minn. Stat. § 519.11Case: Plaisted v. Plaisted, not reported in N.W.2d (2008)	There are four requirements for an enforceable postnuptial agreement in Minnesota: (1) both spouses complete full and fair financial disclosure; (2) the agreement is procedurally and substantively fair and equitable at the time of execution and enforcement; (3) both spouses have separate legal counsel; and (4) the agreement was entered at least two years prior to filing for separation or divorce.
Mississippi	There is no clear law regarding the enforceability of postnuptial agreements.
Missouri	Yes	Statute: § 455.220 RSMoCase: Lipic v. Lipic, 103 S.W.3d 144 (2003)	In Missouri, postnuptial agreements are upheld when the following three requirements are met: (1) both spouses entered the agreement freely, fairly, knowingly, understandingly and in good faith; (2) both spouses fully disclosed assets; and (3) the agreement is not unconscionable.
Montana	Yes	Statute: Mont. Code § 40-2-301Case: In re Marriage of Myers, 210 Mont. 173 (1984)	Montana postnuptial agreements are enforced when the agreement is not unconscionable; and it complies with the requirements for good faith dealings in confidential relationships.
Nebraska	Yes, provided it only involves inheritance rights	Statute: Neb.Rev.Stat. § 30-2316Case: In re Estate of Kopecky, 6 Neb.App. 500 (1998)	Only postnuptial agreements that are limited to spousal inheritance rights are enforceable in Nebraska. Additionally, there must be a voluntary waiver of rights and both spouses must complete a fair and reasonable financial disclosure or have adequate knowledge of the other spouse’s finances.
Nevada	There is no clear law regarding the enforceability of postnuptial agreements.
New Hampshire	There is no clear law regarding the enforceability of postnuptial agreements.
New Jersey	Yes	Case: Pascelli v. Pacelli, 725 A.2d 56 (1999)	There are three requirements a postnuptial agreement to be enforceable in New Jersey: (1) the agreement must be fair and equitable; (2) the terms must be conscionable when made; and (3) the spouse seeking enforcement must act in good faith.
New Mexico	There is no clear law regarding the enforceability of postnuptial agreements.
New York	Yes	Statute: N.Y. Dom. Rel. Law § 236(b)(3)Case: Garner v. Garner, 46 A.D.3d 1239 (2007)	In New York, there are five requirements for a postnuptial agreement to be enforceable: (1) the agreement is in writing signed by the parties; (2) the agreement is fair and reasonable when created; (3) the agreement is not unconscionable at time of enforcement; (4) both spouses disclosed finances; and (5) there is no fraud, duress, or overreaching.
North Carolina	Yes	Statute – N.C. Gen. Stat. 50-20(d)Case: Small v. Small, 93 N.C.App. 614 (1989)	In North Carolina, postnuptial agreements are governed by standard contract principles, with no additional requirements specific to postnuptial agreements.
North Dakota	There is no clear law regarding the enforceability of postnuptial agreements.
Ohio	No	Statute: R.C. § 3103.06	In Ohio, spouses cannot enter a valid postnuptial agreement unless it is entered immediately before separating
Oklahoma	Yes	Statute: 43 Okl.St.Ann. § 205Case: Manhart v. Manhart, 725 P.2d 1234 (1986)	In Oklahoma, a postnuptial agreement will be upheld as long as there is no fraud, coercion, or unjust advantage. Additionally, the agreement must be just and equitable when considering the relationship of the spouses at the time it is made, their ages, health, financial conditions, opportunities, and the contribution each spouse made to their joint estate.
Oregon	There is no clear law regarding the enforceability of postnuptial agreements.
Pennsylvania	Yes	Case: Stoner v. Stoner, 572 Pa. 665 (2003)	In Pennsylvania, postnuptial agreements are governed by standard contract principles. The only additional requirement specific to postnuptial agreements is both spouses must complete a full and fair financial disclosure.
Rhode Island	There is no clear law regarding the enforceability of postnuptial agreements.
South Carolina	There is no clear law regarding the enforceability of postnuptial agreements.
South Dakota	Yes	Statute: SDCL § 25-2-10Case: Matter of Estate of Gab, 364 N.W.2d 924 (1985)	There are three requirements for an enforceable postnuptial agreement in South Dakota: (1) the agreement is fair and equitable; (2) both spouses complete a fair financial disclosure; and (3) the postnuptial agreement has consideration.
Tennessee	Yes	Case: Bratton v. Bratton, 136 S.W.3d 595 (2004)	In Tennessee, a postnuptial agreement will be enforced when the following three criteria are met: (1) the agreement has consideration; (2) the agreement was entered freely, knowledgeably, in good faith, and without the exertion of duress or undue influence; and (3) the agreement is fair and equitable.
Texas	Yes	Statute – Tex. Fam.Code Ann. §§ 4.102, 4.105Case – Sheshunoff v. Sheshunoff, 172 S.W.3d 686	Postnuptial agreements will be enforced in Texas when the following three requirements are met: (1) both spouses voluntarily sign the agreement; (2) the agreement was not unconscionable when it was signed and, (3) both spouses complete fair and reasonable financial disclosure, voluntarily waive financial disclosure in writing, or have adequate knowledge of the other spouse’s finances.
Utah	Yes	Case – D’Aston v. D’Aston, 808 P.2d 111	In Utah, postnuptial agreements are upheld when there is no fraud, coercion, or material nondisclosure.
Vermont	There is no clear law regarding the enforceability of postnuptial agreements.
Virginia	Yes	Statute – VA. Code § 20-155	There are three requirements for an enforceable postnuptial agreement in Virginia: (1) the agreement was entered voluntarily; (2) the agreement was not unconscionable when it was created; and (3) both spouses provided fair and reasonable financial disclosure or voluntarily waived financial disclosure in writing.
Washington	Yes	Case – In re Marriage of Osborne, 119 Wash.App. 1065 (2003)	There is a two part test for whether a postnuptial agreement will be enforced in Washington. First, the agreement provides a fair and reasonable. If the first test is not satisfied, then the second test will apply. Then the postnuptial agreement will be upheld if there was a full financial disclosure by both spouses, the agreement was voluntarily entered, and both spouses had full knowledge of their rights.
West Virginia	There is no clear law regarding the enforceability of postnuptial agreements.
Wisconsin	Yes	Statute – Wis. Stat. § 766.58(6)Case – Button v. Button, 131 Wis.2d 84 (1986)	In Wisconsin, there are four requirements for an enforceable postnuptial agreement: (1) the agreement was not unconscionable when made; (2) the agreement was entered voluntarily; (3) both spouses completed a full and fair financial disclosure; and (4) the agreement as applied at divorce still comports with the reasonable expectations of the parties.
Wyoming	Yes	Case – Combs v. Sherry-Combs, 805 P.2d 50 (1993)	Postnuptial agreements will be enforced in Wyoming when the agreement has consideration and comports with public policy.

* This information is provided for convenience, and maritalmediation.com assumes no responsibility for the accuracy of the information set forth in this chart. State laws change frequently, and this article may not reflect the most up-to-date legal information. Consult with a licensed attorney in your state for complete requirements of a valid and enforceable postnuptial agreement in your jurisdiction.

Why Hiring Two Lawyers Produces Better Postnuptial Agreements

Yes, spouses really should hire two lawyers when they enter a postnuptial agreement. This is true even when both spouses want to enter the agreement and when they agree on all terms. For purposes of the postnuptial agreement, the spouses are separate parties with separate rights and obligations. It may not be necessary to have two lawyers for the entire process. A couple may successfully negotiate the postnuptial agreement through marital mediation. However, at minimum, each spouse should have a separate lawyer review the document before signing it.

When determining the validity of a postnuptial agreement, courts consider whether lawyers were involved. Courts cannot force anyone to hire a lawyer. However, in order for a postnuptial agreement to be upheld, courts do require that both spouses are given the opportunity to hire independent counsel. There is a concern that one spouse could take advantage of another spouse in a postnuptial agreement. As a result, courts are skeptical of agreements that were not reviewed by two lawyers, especially if the agreement appears unfair or unreasonable to a spouse that did not have separate counsel.

When people get married, the law automatically grants certain rights and attaches certain obligations. A postnuptial agreement is a private contract that changes those rights and obligations. Sometimes it is by waiver, meaning a spouse completely give up one or more rights. Other times a spouse may agree to a limitation of a particular right. A spouse may also agree to assume more obligations than the law requires.

In order to modify rights and obligations by entering a postnuptial agreement, spouses must first know what rights and obligations the law mandates. Typically, this cannot be accomplished without a lawyer. Also, postnuptial agreements can be complex. It is important that both spouses understand everything in the agreement. This is ensured when spouses have lawyers who explain both the law and the agreement itself. Courts will only uphold postnuptial agreements when both spouses know what their rights are and what effect signing the agreement has on those rights.

Lawyer ethics also play a role in why two lawyers are best. A conflict of interest can arise when one lawyer represents two people. Lawyers owe all of their clients a duty of loyalty. When negotiating a postnuptial agreement, the lawyer advocates what is best for the client. Sometimes what is best for one spouse may not be what is best for the other spouse, and the lawyer becomes conflicted.

A lawyer should not represent multiple clients when there is a conflict of interest because it can interfere with professional judgment. There is a risk that a lawyer could put the best interests of one spouse ahead of the best interests of the other when recommending a course of action. Additionally, there is the risk that the lawyer could be ineffective by giving conflicting advice in an attempt to suggest what is best for each spouse.

Since there are two sets of rights involved in a postnuptial agreement, it is best to have two lawyers. When each spouse has independent counsel, the agreement is more likely to be upheld by a court. Separate lawyers can more effectively protect each spouse’s rights. It might be more money, but that’s better than the agreement being declared worthless if the court finds that a spouse’s rights were not adequately safeguarded.

Moving Past Stereotypes: Why Women Need Marital Agreements

Despite a changing society, assumptions about marriage are too often based on gender. When people think about marital agreements, such as prenuptial or postnuptial agreements, many automatically envision a specific type of couple – the older, wealthy man wed to a younger, unemployed “trophy wife.” People falsely assume postnuptial agreements are entered only when a man wants to escape the responsibility of supporting a soon-to-be former spouse through alimony. The concept of alimony has become engrained into our collective culture as something only rich men pay to women who spent the marriage as a housewife and have no work history or hope for a professional life.

It is time to move past stereotypes. When women are the breadwinners (which increases likelihood of divorce) too few think about the possibility that they could end up paying alimony to an ex-husband. However, the law has moved towards gender-neutral application of alimony. The point of alimony is to help maintain the standard of living that spouses become accustomed to during the course of the marriage. There are a number of factors that are considered by the judge, but alimony is a possibility for either spouse when there is a significant disparity in income.

Lili A. Vasileff’s recent Huffington Post article explains:

“Almost one in three married women makes more money than their spouses do. And it’s not just high earning women whose paychecks trump those of their mates. More than 97% of these wives who out earn their husbands take home less than $75,000…For many women who are breadwinners (in a failed marriage), they achieved this status ‘de facto’. In many cases, it’s not as if they ever expected to out earn their husbands or be the primary support for their family.”

Improper or mismatched gender assumptions can be detrimental to a marriage. Each person enters a marriage with certain beliefs about what it means to be a husband or a wife. Conflict can arise when couples do not share the same view on marital roles or when reality does not match expectations. Through marital mediation, couples can explore their beliefs on gender roles and develop a model for their marriage together.

When appropriate, a couple can develop an enforceable postnuptial agreement during marital mediation. Both spouses need to be prepared for the potential of paying alimony in the event of divorce. A postnuptial agreement can waive alimony altogether, establish an alimony alternative, or set the amount and duration of alimony payments. Similarly, a postnuptial agreement can be used to determine rights to property acquired before or during the marriage and establish inheritance rights.