Elizabeth Crowley and Robin Lynch Nardone will be leading a free webinar, "Prenuptial and Postnuptial Agreements: How Are They Different?" on October 7, 2020 from 12:00 noon to 12:45 p.m. ET. The webinar is part of an ongoing series sponsored by Burns & Levinson’s Divorce Law Monitor blog.

Q. About half of all marriages end in divorce and yet the idea of executing a prenup seems foreign to many people, especially when you are in love and think it will last forever. Who should consider a prenup and why?

Crowley: There are many reasons why a prenuptial agreement may be prudent for a couple planning to be married. For one, setting expectations and reaching agreement on how to handle assets and money generally in the event of divorce or death upfront is often easier when a couple is in love and the relationship intact, than dealing with them in the event of divorce, or death without a suitable estate plan in place. This is especially the case if there is family wealth on one or both sides, considerable premarital assets or income on either or both sides, or children from a prior relationship or marriage on either or both sides.

Q. Why would someone need a postnuptial agreement? Isn’t it too late once you are married to negotiate how assets will be divided in the event of a divorce?

Lynch Nardone: There are many reasons why couples sign postnuptial agreements, for example: to alleviate financial strains that are disrupting a marriage (such as where one party has secretly incurred debt), to avoid disputes over an anticipated inheritance, when the parties are disagreeing over the purchase of a substantial asset, when the parties are making significant employment changes and want to feel secure about the future, or even when they intended to enter into a prenuptial agreement but failed to do so before the wedding. Negotiating the division of assets in the event of divorce while married can be tricky, but doing so can stabilize a marriage and avoid a divorce. It is not too late to take care of these important issues once married.

Q. Many people think of prenups as something only celebrities or the super wealthy need to consider. How do know if you need one?

Crowley: It’s interesting because prenuptial agreements have been around for a long time but weren’t often talked about and were typically thought of as being just for the uber rich or celebrities. In reality, many couples decide to have prenuptial agreements. This has become more prevalent as couples get married later in life, after having established themselves in their careers and having acquired more personal or family wealth. They have more at risk and often want to manage the risk of a divorce, or a death, and decide upfront what each party’s rights and obligations will be. Doing so reduces the chance of conflict down the line either between one another in the event of divorce, or with extended family in the event of a death and an expected inheritance. Sometimes it may be that the parties do not have significant wealth, but one spouse has significant earnings or earning potential, while the other may earn less or may even plan to stay home and start a family. All of these factors need to be considered and weighed carefully.

Q. Bringing up the idea of signing a prenup or postnup sounds like a difficult conversation to have with your fiancée or spouse. What tips do you have for how to communicate effectively around this issue?

Lynch Nardone: Discussing finances can be difficult, but having a difficult conversation is certainly preferable to ignoring certain topics until they balloon into serious problems. A discussion about a prenuptial agreement should begin long before the wedding. Springing a draft prenuptial agreement on your fiancé the day before the wedding is never a good idea. This will not be one conversation, but a series of discussions about how each partner feels about money, saving, spending, debt and even potential divorce. These are serious, heavy conversations, worthy of being discussed in private (not around family or friends) and when both partners have the time for discussion (not in the car on the way to an important event and certainly not in bed). Be honest and be willing to listen to and consider your partner’s perspective.

Q. How often are parents the “drivers” in getting their young adult children who are marrying to negotiate and sign a prenup?

Crowley: We see it occasionally. It usually depends on the age of the couple marrying. The older the parties are, the less you see parents getting involved. The younger they are, the more you see parents as “drivers,” often because they are the ones with the wealth that they want to protect and pass on to their children. Often a parent will want all of their children to have prenuptial agreements to protect family wealth such as family companies, trusts, gifts, etc.

Q. Has the COVID-19 pandemic created more interest in prenups and/or postnups? Are you seeing more stresses on marriages overall?

Lynch Nardone: I cannot say that COVID-19 has created more interest in prenuptial or postnuptial agreements, though parties who were originally planning to sign agreements have followed through with doing so despite having to postpone their weddings. COVID-19 has resulted in a great deal of togetherness, which has strained some relationships that were already reaching their breaking points. The result has been an uptick in divorce filings.

Q. What are the biggest “pain points” in executing a prenup or postnup and how do you overcome these issues?

Crowley: One of the biggest “pain points” is discussing the issue of support and division of marital property in the event of divorce. It’s not a happy thing to discuss or think about when you are in love. But it can be cathartic for parties to discuss these issues, to have transparency around money, and to find consensus on how they would handle these issues in the event of divorce. It can be very hard to project what support should be in the future in the event of divorce, but there are ways to deal with it. Sometimes there may be a complete waiver. Perhaps because both parties have significant wealth and/or income streams. Sometimes, we leave support “open” and subject to the then existing law. Other times, we might define or limit what income is subject to being used to calculate any support order. Some agreements have a very detailed formula for support, duration, amount, percentages of variable income and other income categories.

Prenups cannot deal with the custody of children, so thankfully that never has to get dealt with. However, parties may decide in a prenuptial agreement who gets to keep a marital home in the event of divorce, and that can be a tough conversation and difficult to resolve since neither spouse knows what their future housing situation will look like. The nice thing is that every prenuptial agreement is unique, specific to that couple’s circumstances, and at the end of the day, the parties do not have to agree to a prenuptial agreement, or any terms they do not wish to.

Q. Any final words of wisdom that people need to know about prenups and postnups? How does someone find the best lawyer to help them navigate through this?

Lynch Nardone: Remember that a postnuptial agreement is not just a prenuptial agreement signed after the wedding. While they are similar, the two contracts have different standards of enforcement – meaning that a court might uphold provisions in an agreement if it were signed before the marriage but reject those same provisions if the agreement was signed after the marriage. If you want a prenuptial agreement, get it underway well in advance and do not think it can simply be finalized after the marriage. If you find yourself in a marriage where financial issues are causing significant disputes, do not throw in the towel and head to divorce court if a postnuptial agreement might solve those financial issues and restore peace and harmony to the relationship.

In terms of finding a lawyer, look for an attorney with significant experience in this area of the law. While a referral from a friend or relative can often be helpful, make sure that the lawyer has solid experience both drafting prenuptial and postnuptial agreements and enforcing them in court. You do not want a real estate attorney drafting your prenuptial agreement.

Elizabeth Crowley is a partner in the firm’s Divorce & Family Law Group and the Fiduciary Litigation Group. She has practiced divorce and family law for 15 years with a specialty representing clients with complex financial holdings. She has extensive experience negotiating prenuptial and postnuptial agreements. She can be reached at ecrowley@burnslev.com.Levinson as part of its Executive Committee and as Chair of the firm’siness,

Robin Lynch Nardone chairs the Divorce & Family Law Group and co-chairs the Private Client Group. She has more than 20 years’ experience helping clients through challenging family law matters with a specialty in handling high conflict and high net worth disputes. She has extensive experience negotiating prenuptial and postnuptial agreements. She can be reached at rlnardone@burnslev.com.