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Prenuptial Agreements – The Answer I’ve Been Looking For!

On Behalf of | Nov 18, 2014 | Prenuptial Agreements

I have long decried the graudual but unmistakable demise of alimony when justice truly demands its award.  Our last post, by Marietta Divorce Attorney Jeannine Lowery on Prenuptial Agreements attacked this problem in a new, proactive way. I’ve been thinking about it since I read it and will expound upon this notion cum revolution tonight.

Jeannine argued that one reason a couple should enter into a Prenuptial Agreement is to provide security for the stay at home parent, that, in the event of divorce there would be some financial security for that parent’s financial sacrifice.

To put the whole thing in context, here’s the non-proactive scenario: 

Young couple settles down and gets married. Both of them are doing well financially, for young folk, making roughly the same incomes.

Along comes Child number one.  Couple analyzes costs and benefits and decides that one of the parents, usually Mom, should stay home with Child for a protracted period. Two years later, along comes Child number two.  That protracted period becomes more protracted. Mom stays home and raised both children until Child number two enters the first grade.

Mom has now been out of the workforce for eight years, almost a decade. Dad is generating about as much income on his own as he and mom did before their first child arrived.  Mom enters the workforce now after having been out for eight years.  That’s worse than starting on square one.  If Dad divorces her now, is it fair that she receives no alimony?  Is that just?

Assume that Dad doesn’t divorce Mom now.  Assume that he thought “protracted period” meant until their youngest started first grade.  Mom may have thought that once upon a time too, but now thinks that it means when the youngest starts high school, nine years down the road.  Dad and Mom argue about this, but in the end, it is not worth a divorce, so Dad let’s it go.

Child number two has now entered ninth grade.  Dad has been at his career for 17 years.  He’s pulling down big bucks.  Mom, conversely, has been out of the workforce for 17 years.  What she knew in the workplace 17 years ago is now grist for a museum, not an employer.  Now Mom wants a divorce for various and probably fairly good reasons.  The Court awards no alimony.  Is that fair?  Is that just?

Or, the Court awards a small sum for a short period, say five years.  Do you think that in five years Mom will have caught up to the income level she made possible for Dad? Um, no. Fair? Just?

For this mom, it is too late.  She is looking back at what could have been done differently.  But this all too often scenario can inform the wisdom and the judgment of couples making family planning decisions now.

A quick legal lesson: prenuptial agreements are reached by the couple before the wedding.  Postnuptial agreements are entered into during the course of the marriage. Couples come to postnuptial agreements when circumstances change such as when one of them has been unfaithful, is now solemnly swearing undying fealty and is willing to surrender all (somewhat literally) should they ever stray again.

But postnuptials can be used for many, many other purposes, such as when a spouse receives an inheritance, wants to invest it in the family’s assets in some way, but doesn’t want to divest themself of their separate interest in it.

In the occasion tonight, a postnuptial is a perfect, and today necessary, vehicle for memorializing both parents’ committment to the plan, whatever that plan may be.  Shall Mom stay home?  For how long?  If the parties divorce within that time frame, how will Dad make it up to Mom financially?  Will Dad have to make it up no matter the cause of the divorce? If Mom chooses to remain at home after the agreed upon period, what happens?  Are all bets off? 

Scream this plan, this opportunty, from the mountaintops to every couple you know who have decided that one of them should stay home to raise the kids. This postnuptial plan doesn’t work when the wheels have come off the bus. It’s part of what keeps the wheels on the bus.  Get that postnuptial in place so that both parents have protection through certainty.

A good fence builds good neighbors.  It may be that a good postnuptial agreement helps build solid families.

Michael Manely