Post nuptial agreements? Worth the effort?

[oldshirt]

There's been mention of post nuptial agreements lately in regards to infidelity and I just wanted to get peoples opinions on them.

 

Often when they are mentioned it is in regards to if the WS cheats again, the BS gets the house, kids money etc..

 

So my question is do they actually work and are they worth the effort and expense etc?

 

For starters are they even binding in court? In a no-fault state, does a court care if there was infidelity even if a post nup is in place?

 

Is it even legal in many states for a spouse to essentially waive their rights to marital assets due to a behavior which is not inherently illegal?

 

( for example, many divorce

Laws are probably written as stating that marital assets will be divided equally and fairly between both parties in event of dissolution. That being the case, one party cannot agree to something that is essentially not legally supported. An example of this is an employer can not pay less than minimum wage even if an applicant agrees to less, because a person cannot agree to an amount less than prescribed by law. ). That being said, can a person even agree to a less than fair an equal distribution and have it be legally binding?

 

So my first question is are they even binding and carry any weight of the law?

 

 

 

My other question is then, do they have other value, even if not supported by law?

 

Meaning is their actual value not the legal contract but rather the emotional impact of having it in place? Or is it like asking someone to take a polygraph?

 

Polygraphs have been consistently proven to not accurately prove or disprove lies, but rather their value is in the psychological impact and the "parking lot confessions"?

 

Is the real value of a post nup, the psychological impact and also watching the response of the WS when one is demanded?

[carhill]

So my first question is are they even binding and carry any weight of the law?

Competently drafted, they carry the same weight as any other contract can carry. Can they be contested and argued as invalid? Absolutely. Lawyers make careers of such matters. IME, in matters of the law, there are no absolutes other than there are no absolutes.

 

 

 

My other question is then, do they have other value, even if not supported by law?

The value IMO would be in the intent of the parties being clearly and precisely enumerated. I deal with this stuff every day in contracts, since they're a part of my business. The social value of reminding a person of what they agreed to in writing IME does carry weight versus interpretation of non-recorded interactions.

 

Meaning is their actual value not the legal contract but rather the emotional impact of having it in place? Or is it like asking someone to take a polygraph?

I'd opine it's a mix, part clearly agreeing to something and part predicated on our social commitment and socialization into a society of law and order. One could certainly draw comparisons to 'telling the truth' when hooked to a machine which purportedly can discern deception but IMO a written, signed, notarized and recorded contract is even clearer and more concise. Can either be a guarantee? Nope!

 

Polygraphs have been consistently proven to not accurately prove or disprove lies, but rather their value is in the psychological impact and the "parking lot confessions"?

Don't know much about them but I guess the psychological impact could be similar to taking an oath and court under penalty of perjury. It all depends on the individual's psychological perspective on society, law and matters of social and personal interaction. Some people care a lot; others not at all.

 

Is the real value of a post nup, the psychological impact and also watching the response of the WS when one is demanded?

I would think the value is in protecting one's life work and other matters of material importance. Interpersonal relationship dynamics are addressed in that milieu.

 

TBH, if matters of this type were on my mind today, I'd simply press the eject button. That said, D taught me to never leave my life's work unguarded and to be less easy-going about such matters. I didn't equate marriage with business before and do now. That's how life works I guess, for me anyway.

[d0nnivain]

It all depends. I have been lead to believe that there must be some changed circumstances to make them valid.

 

 

For example, after my mom died, Dad's advisors wanted him to start doing Medicaid planning which would involve transferring the bulk of his assets to me. But there is a look back period. Dad trusted me to use his money to support him if he needed cash before the look back period was over but although he loved my husband, his fear was that if he gave me all his money, my husband would divorce me to get his half then I wouldn't have the money to care for dad. It was actually DH's suggestion that we do a post-nup where he'd disclaim any entitlement to money transferred to me by my dad. The lawyers said that as long as I didn't co-mingle those funds DH would never have a claim to them. Sadly my Dad passed before that could be done.

 

 

I do not know that they would be valid ways to prevent cheating.

[Realist3]

No. They are a complete waste of time. Do you know how hard it is to prove actual infidelity in court? Very very difficult. Most states went 'no-fault' because judges were tired of all of the he said- she said crap. Nothing provable.

[carhill]

Yep, the burden of proof is likely why states did away with fault divorce (adultery, mental/physical cruelty/abandonment, impotence, etc) and moved to no-fault as default. However, a post-nup doesn't have to address the matter which may have triggered it, rather 'if we get divorced, this is what we agree to', with the difference being the agreement is drafted after legally marrying, hence 'ante' versus before, or 'pre-'. Although I'd certainly listen to counsel's advice, I'd likely move away from social interactions such as a adultery as a parameter of meeting contractual obligations. YMMV on that. People do what they do.

[collected]

I would think that the most that you'd be able to do would be to modify the alimony to a smaller amount for both parties. You can also set up how the assets are split 50/50 mark-to-market to reduce possible attorney costs. Putting things like infidelity in a contract or not splitting assets 50/50 will get the whole thing thrown out. Marriage today is just a financial contract between two parties.

[No Limit]

If you want to be safe, don't marry officially. You can still get each other the ring and throw a big party and wear fancy stuff without the contract.

[collected]

If you want to be safe, don't marry officially. You can still get each other the ring and throw a big party and wear fancy stuff without the contract.

 

That's not as safe as you think. You might have to provide the other person palimony and split assets depending on what state you're in. Palimony applies in most states where traditional common law rule applies. Also if you make yourself out to be legally married or hold a marriage ceremony and the other person lies that you promised to marry or provide support, then the court will likely recognize a marriage even though you never signed anything, even in CA. There have been court cases where this has happened. The same thing goes for making yourself out to be a mom/dad for a child that's not yours.

[Lion Heart]

If you want to be safe, don't marry officially. You can still get each other the ring and throw a big party and wear fancy stuff without the contract.

 

Here (in Oz) if you spend more than 2 nights per week at someone else's home, for up to 1y I believe, the relationship is considered "de-facto" and, therefore, has all the legal wrangles of D with financial assets, should 1 party take this to court.

 

Also if 1 party wants a D, it's passed. No one need turn up to court. No contesting or "fighting" the D. It happens regardless.

 

Most fighting happens during settlement of assets (or indeed before the split!). This is where alot of money is made by shark lawyers.

 

I've made moves and continue to make moves to secure my assets, regardless of WH future behaviour, since D Day. It should take 2y for everything to move. I'm doing everything I can to secure mine and my children's financial future NOW.

There'll be little to go to court for during settlement after D. In fact I plan to avoid court altogether as I've got massive amounts of paperwork that prove without a doubt that the assets were mine before I knew him, I've earnt 10x more during our M plus being 90% sole carer & provider for all children. Happy to continue this.

 

The "not a leg to stand" on landscape is coming together very well.

 

Should we separate, D will be swift and no settlement to be done. My deal? Only Govt ordered Child Support necessary. That'd be about $15 / month from him on his going wage.

 

Consider getting "all your ducks in a row" now and always.

Keep proof of everything.

 

I never intend on sharing assets again, with anyone.

 

Over the past 50y my family has spent literally millions of dollars on legal costs fighting greedy, unworthy people. We've won the war each time but what a cost the battle was!!!

 

I'm working hard at the above so they don't get 1c from me. I will coach my children to be far more guarded than even I was.

 

Get organized.

 

Lion Heart.

[No Limit]

Wow! In the country I live in its either married or too bad. Better check your local rules about this I guess.