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No pre-nup? Try a post-nuptial

Hillary Wicai Jul 7, 2006


KAI RYSSDAL: It’s summer as you know, so rabbis, priests, ministers and justices of the peace are busy marrying couples off. The goal of course is happily ever after. But so often money makes it more like “frustrated ever after.” Cash almost always tops of the list of what couples argue about, but there is a new way for them get back to happy again. From the Marketplace Work and Family Desk, Hillary Wicai reports.

HILLARY WICAI: Thirty years ago, a guy we’ll call Bill wed his true love, a woman we’ll call Sally. (They don’t want to use their real names.) But back then they had dreams of happy children and meaningful careers that would help make the world a better place.

BILL: “We got married very much because we wanted to get married. We’d been together for a number of years before that.”

It was the 1970s. Love was the answer and financial security was the last thing on their minds. Fast-forward a couple decades — through Bill’s mounting business debt and ensuing depression. The couple found themselves fighting a lot over major money issues. They’ve refinanced the house twice to pay off the business loans.

SALLY: “It’s an ongoing thing. Every day there’s more debt than there was the day before.”

Sally’s worked through the whole marriage. She doesn’t want to see her pension disappear and fears the house could be taken away if Bill continues spending. Bill insists that things are now turning around. He’s more comfortable with debt and wants flexibility. Sally wants security. It’s a fundamental conflict that’s killing their marriage. They tried a couple of marriage therapists.

SALLY: “The first one that we had kept saying there’s got to be a way, there’s got to be a way of separating our finances which was our major problem.”

But the therapist didn’t know how and the couple felt sure they were headed for divorce — until they met marriage mediator and Boston lawyer John Fiske. He suggested a legally binding post-nuptial agreement. They could draft a contract to put an iron wall between their finances. For starters, Fiske suggested putting the house in Sally’s name.

JOHN FISKE: “He says, ‘OK, I’ll deed the house to you.’ She says, ‘No one has ever told me you could do that.’ And she in turn said, ‘If you do that, if I ever sell this house, I want you to have half of the proceeds.’ And he said, ‘You never told me that.’ And they both looked at me and said, ‘We’ve done more in a half an hour than we did in three years of therapy.”

Bill felt it acknowledged his contribution to the house. Sally felt secure. The goal: with her anxiety addressed, she gets off his back and he can spend what he thinks is necessary on his business. But can lawyers really save a marriage? Fiske says consider that a marriage has a business component and a romantic component.

FISKE: “The legal agreement can help you address the business component and make sure it doesn’t interfere with the romantic component.”

Each post-nup is tailored for needs that can change over the course of a marriage. One of Fiske’s clients even comes in for a post-nup tune-up every few years. New York lawyer Cynthia Rubin had never even drafted a post-nup three years ago. Now she’s says they’re gaining popularity, especially when one spouse gives up their career for the other.

CYNTHIA RUBIN: “It could be an identity change and it could cause a lot of anxiety and uncertainty in a marriage.

Rubin remembers one agreement she drafted for a couple. They had decided the wife would stay home with the kids. But after making that decision, the wife felt powerless and wondered what would happen if they ever divorced. The agreement formally acknowledged how much the decision had cost her career as an attorney in case of any future separation. Therapist Dr. Rob Scuka says post-nups can pick up where therapy leaves off.

DR. ROB SCUKA: “Anxiety can suck a tremendous amount of energy out of a relationship because it’s rooted in uncertainty. What a post-nup does is eliminate the uncertainty which then reduces the anxiety.”

Bill and Sally haven’t finished their agreement yet but they say they feel more hopeful than they have in years.

SALLY: “This is whole different way of looking at it — that you make a contract not in order to divorce, you make a contract in order to stay together.”

Lawyer John Fiske charges $400 an hour and it takes about 10 hours to negotiate a post-nuptial. He says that’s much cheaper than a divorce.

I’m Hillary Wicai for Marketplace.

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