Tuesday, April 8, 2008

Save Your Marriage with a Postnuptial Agreement

In a post yesterday, Sam Hassler, who writes the excellent Indiana Divorce & Family Law Blog, wrote about postnuptial agreements again. These are agreements that are signed during a marriage which divide some or all of the property and debts of the spouses. They can specify who controls various assets and who is responsible for various decisions. The agreements can also cover assets and income that may be acquired in the future. There are many things that can be done with such an agreement and just as many purposes for creating them.

Sam referred to an article in CNN.com that discussed a benefit of postnuptial agreements that isn't often discussed. It mentioned a case where a husband and wife could not agree on significant debt and property issues to the point that their marriage was under a strain. That is not an unusual situation. Rather than get a divorce, however, they decided to do a postnuptial agreement. It was one of the best things they could have done.

As the CNN.com article noted,

" 'In cases where couples want to stay married, it can apply very efficiently,' says Cambridge, Massachusetts, attorney John A. Fiske. 'If they don't want to stay married, it's hopeless.'
"The Boston couple, who had been married 30 years, fell in the former camp. Fiske helped them put into writing a mutually acceptable financial plan. They agreed to transfer their house into the wife's name, both to address her fear of losing the asset and to insulate it from the husband's business debts, and to split the mortgage and other household expenses.
"That was 18 months ago, and they credit the post-nuptial agreement with helping them become a mutually supportive couple again."

The CNN article actually talks about mediation, but Collaborative Law would work very well in this situation. Using the Texas model, we would bring in a neutral financial advisor to help both parties find beneficial ways to meet their needs and goals. Each party would have his or her own attorney to make sure the process worked to everyone's advantage. There have been cases in Texas where the parties started a divorce proceeding and later switched to working out a postnuptial agreement when they realized that they still wanted or needed to be married, even though there were some significant financial issues that were splitting them apart. In such a situation, the Collaborative process is a great way to create a new financial arrangement between spouses and possibly save a marriage.

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