According to the New York Times on December 9, 2007 postnups are becoming more popular (the article appears below). Dr. Phil has featured them on TV, and lawyers belonging to the American Academy of Matrimonial Lawyers who were polled state that they are being asked far more frequently to draft postnups. Usually, say these lawyers, the postnup is entered into after discovery of some marital infidelity and perhaps only props up a marriage for a while. The postnup does allow the parties to define their rights and obligations in the event of a divorce or separation.
Postnups are not exactly like prenups. A prenuptial is entered into prior to marriage. Presumably, the parties have a lesser ability to understand or to discern the true net worth of each other. Often, the parties to a prenup have disparity in their net worth and often in their business acumen. One party may have a far weaker position, and thus, fairness has been interjected into the requirement for enforcement of a prenuptial agreement. Case law in Michigan allows a prenup to be invalidated if the party opposing enforcement can prove that
- It was obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of material fact,
- It was unconscionable when executed, or
- The facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.
SOURCE: New York Times
In February, the TV-talk-show psychologist Dr. Phil introduced his viewers to a new twist in domestic drama: a husband asking his wife to sign a postnuptial agreement. A postnup? Like a prenup, a postnup is a contract that divides a family’s assets between spouses — only this time it comes after the marriage vows have been spoken.
Postnups are fast becoming a familiar part of the marriage-law landscape. A poll published this year by the American Academy of Matrimonial Lawyers found that almost half its members had seen an increase in the practice. Most states now recognize postnups (though many still place significant restrictions on them).
One reason couples use postnups, according to Stuart S. Greenfeig, a Maryland attorney who specializes in them, is to try to shore up rocky marriages. “They generally arise when there’s concern about the stability of the marriage — for example, when one spouse has committed adultery,” he says. Some clients wanting a divorce may end up reconciled through a postnup that guarantees more assets to the aggrieved spouse. Postnups also arise from simple economics: when a couple goes through a major financial change — the wife gets a major promotion and a significant income increase, for example — they may want to renegotiate their original terms. (Many postnup couples already have prenups.)
But why so many of these agreements now? One factor is that hedge funds and other high-value equity partnerships increasingly urge new partners to get postnups. It’s a phenomenon of the new gilded age: postnups assure such firms that a divorcing partner won’t be giving away part-ownership.