FULL TRANSCRIPT – Season 2, Episode 69

Welcome to another episode of the exEXPERTS DIVORCE etc… Podcast where we give you all kinds of information and tips on everything divorce. Why? We’ve lived it, so we get it! We’re T.H. & Jessica. 

Jessica: Today we’re so excited to have back Andrea Vacca, collaborative attorney, and mediator based here in New York City. Andrea, thank you so much for joining us again.

Andrea: Thanks, Jessica. Good to be here.

T.H.: Hi Andrea. Good to see you.

Andrea: Hi T.H., you too.

Jessica: Today we’re going to be talking about the all-important prenup and postnuptial agreements, which I actually never even asked T.H… I did not have either of those things with either of my marriages. It ended up, thank god, working out okay anyway, but obviously, a hugely important issue when going through any kind of marriage. I actually want to turn this conversation around a little bit the opposite way to start since the ExExperts community is mostly people on their way out of a marriage and not necessarily getting started in there. I want to start with the postnups because first I’d like you to explain exactly what that is. Then my first question is going to be if you haven’t actually spoken to your spouse about getting divorced, it might not be a good time to consider a postnup if you have this agenda. That’s where I want to go with it to start. Can you tell us initially what is the postnup because a lot of people probably haven’t heard of that?

Andrea: Sure. A postnuptial agreement is an agreement that is signed during the marriage. It’s a marital agreement that you and your spouse will sign because you’ve reached an agreement on new terms for your ongoing marriage, or what should happen if it should end or if one of you should die. Every marriage ends in one of those ways, divorce or death, so a postnup is something that many couples do consider when something has changed in the marriage. Whether on finances or dynamics, or there’s been an inheritance or betrayal or something that’s happened that’s made one spouse feel a little more insecure, it’s a trigger for a postnuptial agreement. You’re not negotiating a separation agreement at that point.

T.H.: How on earth, if you’re in what you think is a happy marriage and then your spouse comes and says, I’m about to hit it big and I want us to sign a postnuptial agreement and it’s going to say that you’re either getting this much or nothing, will you sign it? How does that work?

Andrea: I’ll answer that question. How that works is say somebody’s grandmother just passed away and they’re going to inherit a million dollars. The marriage has been relatively happy, but they’ve had their ups and downs. It’s been a long marriage, things are good, and at the same time they say, I want to take this million dollars. I think we’ll be much happier if we can get that house we’ve always wanted. I’m going to take that money and put it into a new home for us and help our family have the space and all the things that we need. But what if the marriage ends? I’m going to need some security before I just put your name on that house, sweetheart. Would you agree that should the marriage end, I get back that million dollars? Because I put it in, I get it back, but we’ll still have the beautiful house to live in. It’s a conversation in that situation where I want to help our marriage, but I need to be smart too, just in case. That’s one way. Another way that it comes up is when there’s been some type of betrayal. Typically, it’s been the female in all the times I’ve seen this. It’s been my female clients in a heterosexual relationship where their spouse has done something really stupid like became addicted to gambling and spent money without telling their wife, like threw it away on the gambling table, or became addicted to something, whether gambling or alcohol or something and just made really dumb financial decisions or didn’t pay taxes for several years and now the IRS is saying you owe us $300,000. In my case, the women who have had this happen to them say, I’m willing to give him another chance. He’s going to therapy, he’s going to AA, or he’s going to Gamblers Anonymous, whatever it is. I can see he’s so sorry, at the same time I need an agreement because I’m not sure if it’s going to work out. If the marriage continues, you’re going to pay that debt. I’m going to get ABC because I’m putting up with DEF in the marriage. That’s how you have a conversation. Something’s happened, and it could be good or bad, but it’s a trigger for we need to talk, and we need a new arrangement here.

Jessica: So that’s what makes me wonder. What I was saying, back to my first question, which is you’re in this relationship, you feel like you see the writing on the wall and it’s not going to work out. You didn’t end up signing a prenup, so do you have clients coming to you that want to get a post-nuptial because they’re like, I want to get a post-nuptial, and then I want to ask them for a divorce?

Andrea: I’ve seen that happen. It’s not how it should happen. Really, when you come to a postnuptial agreement, you are saying we’re not getting divorced, we are staying married. This isn’t a divorce planning tool. It’s not to say it doesn’t happen, and I have seen it happen. I told my client I don’t think you should sign this, I think this is a divorce planning tool for your wife, but they’ve done it anyway. A year later, we get a notice that they want a divorce. It feels really bad, but in that situation, you want to make sure that you listen to your lawyer. We have experience with this, and we can see the writing on the wall. When there’s no trigger and nothing has happened to lead to the postnuptial, you know that’s what that is. You know they’re planning to get divorced. Post nuptials are usually because something has happened and then it makes sense. If nothing has happened in one, perhaps a very high-wage-earning wife in a situation, I’m speaking in these male/female relationships, because these are the post-nuptials I’ve been dealing with lately. A high-earning wife may be making $3-4m a year and a relatively lower-earning husband making $400k or $500k a year. Both make good incomes, but the wife feels like she’s put so much into this marriage and she’s taking care of the kids. She’s scared and she still feels really financially insecure that she might have to give half of it over later. Two times now I’ve seen those types of wives want prenuptial agreements and they both were for divorce planning purposes in the end.

T.H.: I think it’s a hard conversation. I think it’s probably an easier conversation before you get married. Is it like a trendy new thing to get a postnuptial agreement or is that something that’s been around for a while?

Andrea: Postnuptials have been around for a while. More people are asking about them because they’re aware that they can do something and that they don’t have to live with insecurity while they’re giving the marriage more time to get back on its feet, go to therapy, or whatever. They can find their financial security and still stay married. It’s more that just more people know about it. Sometimes people come to me and they don’t know what a postnuptial is. They think they want a divorce and we talk and I say it sounds like you’d rather stay married. It’s not that bad, he did something stupid, okay, but maybe you want to stay married. Maybe you need to stay on his insurance, you have grandkids together, or you have a relatively good life. Maybe you want to give it a little more time. Let’s talk about a postnuptial agreement. They’re like, oh, I didn’t know I could do that. The attorneys are educating more people about it as well. You don’t have to end your marriage.

T.H.: Are these agreements primarily just financial or is it asset distribution? Like if you have jewelry and whatever was gifted to you during your marriage, you don’t want to argue about it if the marriage should dissolve, is that also to protect those types of things?

Andrea: Sure. We’ll talk about whatever assets are important to you. Whatever is triggering something, it’s usually very emotional, right? My family gave us so much of something, or my family helped us buy this home. If we end, I want to make sure I get his money back to give to my parents. Even though it was a gift, I’m going to feel better if I can give that money back to them. Or I want to make sure all the jewelry stays with me, whatever it is, it’s important. Sometimes it’s about debt. As I said, you’re going to keep the debt. If we incur a home equity line of credit to pay off that gambling debt, you’re keeping that at the end of the marriage, not me. I didn’t do anything wrong here, so let’s agree you get the debt. Sometimes it’s about how are we going to live our lives in the marriage. Sometimes in a blended family, this comes up with stepchildren, adult children, causing stress to the marital relationship. Sometimes the couple will come to an agreement on how we’re going to deal with these difficult family relationships that we have and come to new agreements in our marriage. And then should it end, this is what will happen financially.

T.H.: I think that’s really important. They’re all important, but I didn’t even think about a blended family and starting again and the kids. It can be very complicated. I guess it would be more comforting to know that you have had those conversations, and you’ve worked it out. It’s being transparent and then you’re either in or you’re out. At least you’re going in with your eyes wide open and speaking your mind of what’s important to you, as opposed to keeping it inside and then hoping that it’ll go to the right instead of to the left or you know something like that.

Jessica: On that note, I wonder then, shifting now the conversation a bit over to the prenup, because people listening here are either currently going through a divorce or have been divorced, maybe optimistic about the future, maybe are still open to the idea of getting married again, I wonder if you feel like there’s a higher percentage of people getting prenups if they’ve already been married before or if it doesn’t make a difference and if it’s sort of the same stats? What are the first things that people should think about if they are considering getting married or remarried and think that they might want a prenup?

Andrea: Well, yes for the first question. More people who are getting married for the second or third time, they’re getting remarried, I recommend everybody getting married, who have children from a prior marriage, to have a prenuptial agreement in their new marriage. It’s like a no-brainer. You do need that because maybe you have obligations to your children that you’re going to be paying for college, you’re going to be supporting them, or you’re going to be paying for whatever it is. You want an agreement with your new spouse like where’s that money coming from. It’s coming from my paycheck that’s now marital money in my new marriage or do I have to sell something to be able to pay those obligations? This is very complicated and can bring a lot of stress to a new marriage if you don’t talk about it. So even just talking about a prenup for a second or third marriage, whatever it may be is really helpful for the relationship. I am seeing first-time marriages of course more and more people are talking about prenups. People who you would think why do they need a prenup, they don’t have much yet. Well, that’s why. They don’t want their parents’ divorce. They don’t want to be fighting later. They want to have this conversation now, get it out there, make an agreement, and they know the deal. Then they can just go on and have their marriage. They’re just getting smart. Kids have been traumatized who have been through their parents’ divorce and they don’t want that.

Jessica: If neither person has anything, what’s going into a prenup?

Andrea: Well, at that moment they might not have anything, but they might agree that we will definitely share our retirement accounts, but we will have our incomes that we get from our jobs go into our own accounts. Only what we put into a joint account will be marital and everything else we get to keep. There are so many ways that you can do a prenup, but it’s just more of an understanding. Maybe one is a vice president, but they expect to be a managing director someday and they just know they’re on a track. A lot of younger people, I’m talking 30-40s, they’re just more forward-looking. They’re just more aware of what can happen if the marriage ends and so they’re getting smarter about it.

T.H.: I think in talking about you don’t want your parents’ divorce, I feel like most younger people, or first-time marriages are not afraid to have these conversations. It did come up during my marriage, a postnuptial –

Jessica: A postnuptial?

T.H.: A postnuptial, yeah. And it was not good. It just wasn’t. Yeah, I mean, can you imagine that? But honestly, if it were the other way around, I would almost be a little offended. But I just feel from all the stuff that we’re reading and we’re hearing about, generally, people are waiting longer to get married, waiting longer to have kids, and they each have a career or building a career of their own. There are certainly plenty of situations where the father stays home or the mother stays home, but more likely they both have a job and they’re balancing hours and family time. The whole dynamic is so different now that I think back to when we got married, these conversations, I would be very uncomfortable having those conversations, even though of course, we would have it anyway. But now I feel like all right, you know we should talk about this, that, and the other thing. That’s what you do now, and you know that is probably better.

Jessica: Darren did bring up a prenup at one point before we got married. First of all, I was 23, I had just graduated college the year before, and we got engaged the summer after I graduated college. Darren’s a couple of years older than me, neither of us had anything and whatever our parents had was sort of irrelevant at that time. Darren brought up a prenup agreement and I had told my mother. My mother was like, what a schmuck, neither of you guys have a dime to your name. I was in graduate school and she was like, a prenup for what? It was just very funny. But I do think that to T.H.’s point, 25 years ago that probably was more of the mentality. Prenups for what? As opposed to the foresight that you’re saying now you may not have anything or you may not have much, but you anticipate this later, and let’s have that discussion now, which actually ties in really nicely I guess to what your overall focus is in terms of collaborative divorce. Thinking about the long game and being able to have those tough, crucial conversations now to avoid all of that pain later.

Andrea: It’s true and the way you negotiate your prenuptial agreement or postnuptial agreement makes all the difference as much as a divorce because you’re starting a relationship or you’re trying to maintain a marriage. But let’s get back with the prenup. If you go to a more traditional divorce attorney, they’re going to say let me draft a prenup for you, what do you want? Tell me everything you want, I’ll write it down, and you should want this, this, this, and this as well. Then you give it to your fiancée and have them look at it with their lawyer. It’s like you’ve been shot in the heart when your fiancé hands this to you this contract that you have no idea what it is. That’s the worst, do not do that. Anybody listening to this conversation, please don’t go to that lawyer. Go to a lawyer who is going to say okay, these are the things you’ve told me are important to you. I want you to also think about all these other things that you had never thought about but will come up. Here’s a list of issues, you should go back and talk to your fiancé. Tell them you want this, tell them what’s important to you, find out what their thoughts are about all these things, and then come back to me and tell me what the response was. Then we’ll figure out if we have to have a conversation with their attorney and all four of us will sit down. Or if you seem really on the same page, then I’ll draft an agreement or term sheet for you to look at and for him or her to look at, again, with more of a legal bent to it so that they can review with their lawyer. 

Then you’re encouraging a conversation. I call it conscious coupling because you really want to think about what you’re doing, why you’re doing it, why it’s important to you so that you’re both feeling secure. A prenup is not for one side, it’s for both of you. You get one thing, I’m going to get something else, and so it has to be negotiated. That’s how I like to negotiate them.

Jessica: It’s interesting, I have a girlfriend who is getting married for the second time and is currently negotiating a prenup which they’ve been negotiating for a little while. It is bringing up a lot of emotions because for her, as someone who doesn’t necessarily have a high-income paying job, and for her soon-to-be husband who is an extremely high earner, it’s almost like this is what you’re worth if this marriage doesn’t work out. I think that she’s having a lot of trouble separating herself from that belief and that mindset because that’s what it’s coming out to sound like and feel like for her.

Andrea: And that might be where he’s coming from. She might be marrying somebody who sees marriage that way and wants to assign a worth to her, I don’t know, or their attorney is encouraging this. It doesn’t have to be that way. Is he listening to her? Is he listening to what is important to her and what she needs out of this marriage to feel secure? It’s not just about him, otherwise why get married?

T.H.: There is so much information you just gave us, but you hit the nail on the head. It’s about both people. When it came up during my marriage, it was all about me. I win, you lose, that’s how it’s going down. The way you’re presenting it, and the way really the word needs to get out there is, this is a conversation we should have. Just like there are things that are important to you that I bring to this relationship, there are important things on both sides that everybody’s bringing here. Let’s not put your head in the sand as our parents did and pretend everything’s fine like our parents did. Let’s deal with it now so we have a better life. It’s a whole perspective thing. You can look at it in a completely different way, but the way that you’re presenting it is in such a positive collaboration – this is a great way for us to build an open foundation for our marriage so we can just make it stronger. I mean, that’s it.

Jessica: And truthfully if you’re going – you really have to be able to have that kind of relationship with someone. Obviously, you’re getting married and sometimes you can have difficult conversations. They may not always end up exactly the way that you want, but it’s to both of your points. It’s like okay, you win some and you lose some. You negotiate, you collaborate, you have the tough discussion, and you come out ahead because you have that foundation, T.H. like you just said. To be able to communicate like that is a huge testament to where you’re going with this relationship anyway.

Andrea: Absolutely.

T.H.: Yeah, I think they might work.

Andrea: The other thing I want to mention is you can negotiate prenuptial agreements and postnuptial agreements collaboratively where you each have your own attorneys who are agreeing to come at it in a non-adversarial way. You can have a financial professional looking at it. As part of your team, you can have a mental health professional, who we call a family specialist, looking at it and talking to you about the emotional issues and the communication issues and really take care of the emotional, legal, and financial issues of this couple who are trying to start a new life together and not have the marriage they might have had, not only their parents’ marriage but their own last marriage. They don’t want to repeat that, right? That’s why they’re getting so scared and why this prenup is not feeling good to one of them maybe. They’re not approaching it from a more holistic approach, which is going to be much healthier for the marriage if you really want to stay married.

Jessica: I feel like this conversation could continue for quite a long time so I know we’re going to have to pick it up again another time soon. But thank you so much for sharing all of this important information for the ExExperts community, because this is something for sure everybody needs to hear about, consider, and figure out what works best for them. For anyone listening who wants more information or to reach out to you directly, what are the best ways for them to find you?

Andrea: The best way is on my website www.vaccalaw.com. There are lots of materials there on prenups and post-nuptials, so it’s a great resource. Or you can call my office at 212-768-1115.

Jessica: We will have all of that information on our ExExperts site as well for anyone listening. Andrea, thank you so much for taking the time to come back to us today. We can’t wait to have you back.

Andrea: Thank you so much.

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