THE BLOG
09/08/2011 12:37 pm ET | Updated Nov 08, 2011

The Legal Alternative Every Couple Should Know About Before Going to Divorce Court

Cora and John had been married for nine years and had no children. One night, they had a terrible argument over a financial issue that had been brewing for some time. John threw around the "D" word like it was nothing. They had never gone to this level of animosity before.

Cora felt emotionally drained. But more than that, she felt sad, scared, and scarred. John had never even suggested that they get a divorce, let alone rant repeatedly about it. And divorce had certainly never been on her radar screen.

Feeling vulnerable, the following week, Cora decided that she needed to get some legal advice in the event that John did want to move ahead with a split.

She told the attorney that, while she had no intention of divorcing if she could avoid it, she wanted to get information and "protect" herself by understanding what divorce entailed. The attorney explained many of the ins and outs of marital dissolution and he even ran some numbers for her of what the dividing up of assets and debts might look like.

The harsh reality of what a break up would do to them was nothing short of shocking to her and she felt that, if John knew this information, he might think twice about using it as a threat. He stood to have to pay her a substantial amount in spousal support.

As she and the attorney continued to talk, the attorney mentioned a couple of alternatives to divorce -- one was legal separation, which would mean that they could remain married but that their financial lives would no longer be entwined, and the other was to get a postnuptial agreement which would provide the terms and conditions of the marriage going forward. It could also serve as the basis of their negotiation should they end up getting divorced. As the attorney explained, a postnup is the same type of agreement as a prenup but the couple is already married (thus, it's called a "post-nuptial" agreement).

The lightbulb went off for Cora. She realized that a post-nuptial agreement would enable her to feel less vulnerable to John in a couple of ways. First of all, he would know the financial repercussions of his decision and it might make him think twice about it and secondly, they would have the foundation for the divorce settlement in the event that it did occur. There would be no surprises.

When she presented the idea to John, he was initially reluctant to participate - given that he threatened divorce in the heat of anger and didn't really mean it - but he eventually offered his own terms and the two negotiated an agreement that was acceptable to both.

A tremendous advantage of getting a postnup is that the couple can gain an understanding of the legal system that they would only have in hindsight if they had divorced. And it can truly resolve a couple's issues regarding disagreements about assets and debts.

One woman who heard about this option after she'd been divorced for two years, became quite sad. She said that, had she known about this option when she was with her husband, it could have saved her marriage.

She resented her husband for not "pulling his weight" financially in the marriage. In her divorce, the court ordered her to give her ex a rather large lump sum which further added insult to injury of him getting what she felt was a "free ride."

Aside from money, a post nup can be used to resolve disputes regarding parenting, child custody, and affairs. For example, spouses might agree to share in the profits of a particular investment but if one or the other has an affair, they forfeit their interest in that asset.

For more information about post nuptial agreements, see the following CNN story:
http://articles.cnn.com/2008-04-02/living/postnuptial.agreement_1_prenuptial-postnuptial-agreements-inheritance-money?_s=PM:LIVING

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