Legal vows: Married couples entering postnuptial agreements

By Dian Vujovich
Special to the Daily News

Marriage isn't easy, no matter your income level.

Take The Simpsons. When the new season begins this fall, there will be a twist: Marge and Homer are separating after 27 years of marriage.

As most real-life, long-wedded couples can attest, marriage comes with challenges that individuals couldn't have predicted -- or imagined -- before their vows were exchanged. And these challenges can change as years pass and children and other family members come and go. Or as a couple's personal wealth rises and falls.

That's where a postnuptial agreement can become a vital part of a family's estate plan. It's a legal document created after a couple marries that outlines the ownership of financial assets in case of separation, divorce or a death.

Just as all couples do not need prenuptial agreements, not all couples need postnuptial agreements. It's also not necessary to have a prenup in order to obtain a postnup. And a postnup doesn't necessarily void what's written in a prenup.

If that all sounds a bit confusing, it is.

"This is not a simple subject," says Reid Moore, an island attorney whose practice concentrates on family law and estate planning. "But reasonable people can work anything out."

Different... but similar

Although these documents sound similar, prenuptial and postnuptial agreements are two distinct legal contracts: one created before a wedding and one created after.

Both require each spouse to be represented by his or her own attorney, require full disclosure of financial assets, require agreement upon what's included in the contract and, most importantly, must follow Florida law.

Criteria for prenuptials are more stringent than and different from criteria for postnuptial agreements, Moore said. All criteria must be met in both for the documents to be enforceable in court, he said.

Beyond that, these contracts are as varied as the artwork inside the homes on Billionaires Row.

Who are they for?

Postnups aren't just for couples contemplating divorce. This estate planning tool can be used in a variety of situations that might occur after marriage, such as learning one spouse is a gambler, an alcoholic or headed to jail. Or finding out that a child or other family member will need financial care throughout his or her life. Or a change in business relationships or significant change in the value of the family's portfolios.

Couples also might use them to update prenuptial agreements if, for example, one person's wealth changes dramatically.

"Postnups are good for doing things such as cleaning up any issues that might arise as a result of having a prenup that needs to be changed. And they can afford people a sense of security so that they can remain married," said Cynthia Dienstag, an attorney with McLaughlin & Stern in West Palm Beach who has been recognized for her skills litigating pre- and postnuptial agreements.

Perhaps the best reason for a postnuptial agreement comes down to the bottom line. That's because, in Florida, marital rights provide for a 50-50 distribution of assets in a divorce -- unless otherwise spelled out, Dienstag said. A postnuptial agreement can change that allocation.

And they're increasingly popular even as the divorce rate has stabilized in recent years, according to James McLaren, president of the American Academy of Matrimonial Lawyers. Since 2008, the number of people seeking postnuptial agreements has increased about 30 percent, he said.

It's complicated

Creating an agreement that fits your family's situation takes effort and time. Each one is unique in the problems or concerns that it addresses.

The first question a couple needs to answer is why they want one, Moore said.

"They should first consider what exactly is it that's driving them to even think about it (a postnup)," said Moore. "Was it someone's death, or birth or marriage, a discharge of employment?"

After carefully and honestly examining the circumstances, each spouse should find an attorney with estate planning and postnuptial experience to counsel them, Moore said. If there's a red flag in the postnup world, it has to do with couples who already have a postnup in place.

"The laws have changed so drastically that there are a lot of people sitting with prenups that need to be revisited because there have been changes in the laws that may invalidate or cause unnecessary exposure (for the couple), " said Deinstag, who has been practicing law in South Florida for 27 years.

Back to The Simpsons

In the end, the reasons for the Simpsons' split were health- and romance-related: Homer's narcolepsy puts a strain on the marriage, and he falls in love with his pharmacist.

Marital challenges like those are as common in the real world as they are on television. But in real life, a postnuptial agreement could make a couple's life better and keep them from letting out a Homer-size "D'oh!"