Should You Execute a Postnup or File for Divorce? by Vickie Adams

Should You Execute a Postnup or File for Divorce?

Should You Execute a Postnup or File for Divorce? by Vickie AdamsIf you’re the higher wage earner married to a husband who is chronically “underemployed,” this can cause a lot of resentment. Over time, resentment stemming from an imbalance of money or imbalance of responsibility spills over into other areas and, subsequently, degrades a marriage. Recently, a reader of this blog requested I write on this topic, as many women now find themselves in this very same situation.

She asked, in essence, “What do you do when you are the one who has always carried your household financially, and your husband lets you know he no longer wants to be in the marriage, but yet he just doesn’t leave?

She and her husband had discussed and decided on divorce, and even went to see an attorney about a postnup.

After much thought, the husband decided to decline the postnup. Postnups are contracts that spell out how assets and liabilities would be split upon divorce and he was likely unhappy with this division. It would freeze her share of community contributions, which would not benefit him at that point in the marriage.

In a postnup, each person must be represented by separate counsel. It also requires full disclosure, as marital partners have a fiduciary obligation to be honest with each other. Postnups can be overturned for a variety of other reasons. But in a divorce, only one person has to be brave and take the action.

Now, the husband, in this case, lives upstairs, while she lives downstairs. He says that waiting the 4 years for their child to graduate from high school would be less traumatic. By the time a child is 13 years old, they’ve seen enough TV shows to know that a typical family doesn’t have one parent living upstairs and one parent living downstairs. Who is he kidding?

Many lower wage-earning husbands are content to stay in an unhappy situation. (Yes, and many wives, too.) Perhaps they know that they would not live as well or with as many creature comforts on their own, especially time with their children, so why rock the boat? Sounds harsh, but it is often the case.

To protect herself financially, our reader might be wise to file for divorce, even though she will likely be the one paying spousal support (unless she can prove that he is qualified to earn more).

Once the divorce proceeds, in order for him to receive spousal support, he would likely have to move out of the home. He would not receive additional benefits of the community, such as increases to her wages or contributions to her 401(k); those assets would be her separate property. Sadly for our reader, he’s kind of pushed her into making the decision for them.

Prolonging an unhappy situation is not going to produce a better outcome in a case like this. In fact, it’s likely to make your emotional and financial results more damaging. If you are a woman facing a tough situation like this and would like to discuss it, contact me. Because 90% of my clients are women in all stages of divorce, I have a lot of experience to draw from.