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Postnuptial agreements becoming more common, lawyers say

It's kind of a pre-divorce that might actually help avoid one

Photo (c) Nonwarit - Fotolia
You've probably heard of a prenup, and may have even signed one.

But what about a postnuptial agreement? Less well-known, these legal agreements are executed by a couple after they are already married. Some marriage therapists recommend them to smooth out a rocky marriage.

And they're becoming a lot more common. A survey of American Academy of Matrimonial Lawyer (AAML) members found half of divorce attorneys noted an increase in spouses seeking postnuptial agreements over the last three years.

The idea is to basically decide, in advance, what's going to happen when and if the marriage goes completely off the rails. Agreeing before things get really bad and emotions are inflamed, it is argued, makes things go better when the marriage does, in fact, hit the rocks.

Covers division of property

Ninety percent of respondents said the postnups they draw up cover division of property, with 73% said their postnups cover alimony and spousal support.

"A postnuptial agreement is usually produced from some kind of serious strain or emotional fracture that directly impacts the marriage,” said James McLaren, president of the American Academy of Matrimonial Lawyers. “It can represent a way for the spouses to move forward with a shared understanding about the ways in which certain subjects would be addressed in the event of a divorce."

McLaren says drawing up a postnuptial agreement can also be therapeutic for a couple. By deciding what the agreement should cover, he says the couple typically uncovers the things that are causing a lot of stress in the marriage. Also, putting it in a legal document removes some uncertainty that may be troubling one or both spouses.

What to do

If the subject of a postnup should be brought up, McLaren says both spouses need to tread carefully.

If you happen to be the one initiating the postnup, he says you need to carefully consider whether it would be better to proceed immediately with a divorce or try to salvage things with a legal agreement.

If your spouse brings it up, McLaren strongly recommends that you carefully consider all options and not make a decision that could be influenced by guilt., a website supporting mediators, divorce attorneys, and counselors, says a postnup may help a couple preserve their marriage. It encourages couples to work together in a collaborative effort and avoid adopting "the 'boilerplate' of a lawyer."

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