When Your Marriage Starts to Head South

Let’s begin with a marriage that is experiencing difficulties, but is not irretrievably broken. If you’re in this unhappy state, you and your spouse might take some steps that could make a divorce less uncertain financially.

• Execute a postnuptial agreement. Couples who didn’t execute a premarital agreement might consider a postmarriage agreement that accomplishes some of the same objectives. Through such a document, you can set forth the division of property and estate in the event the marriage dissolves. Not a subject that you and your spouse will enjoy talking about, surely, but one that can at least remove the uncertainty of a divorce case—this way, you’ll know going in how much each spouse will get. Courts scrutinize such agreements carefully; if each person is represented by an attorney, the agreement is more likely to be the product of negotiations between equals, and thus be enforceable in court.

• Execute a contract to make a will. Such a contract prevents your spouse from changing arrangements in his or her will without your knowledge and consent. These can supersede any updated will, and can be written so that they expire if the marriage officially ends in divorce or annulment. In effect, such a contract guarantees that each person will stick to the jointly agreed estate plan, instead of changing a will without the other’s knowledge. Their obvious drawback is that they cannot be changed without the other person’s permission no matter how much your circumstances change. They surrender the flexibility that a will provides. These contracts are usually prepared in anticipation that some conflict will occur. Therefore, you should surely involve a lawyer in drawing one up. Be aware, too, that contracts to make wills can involve some serious gift tax issues. Ask your lawyer to look into what they might be for you.

It Affects a Lot of Us

Although the divorce rate has declined slightly in recent years, 40-50% of marriages still fail. More than one in ten American adults is currently divorced, and a quarter of adults have had at least one divorce during their lifetime. That means that many Americans are living the consequences of divorce.