Welcome back to the Oxendine Law Podcast, episode number 45. Today we're talking about two magic words that can save couples from a world of legal problems and emotional distress. Those magic words are prenuptual agreements and post-nuptual agreements. So whether you're planning a wedding or whether you're already married, this is the episode for you. Let's start basic, Christine. What is a prenuptual agreement and how is that different from a post-nuptual agreement? >> Sure. So the content is going to be virtually identical. It's all about when you reach the agreement. So prenuptual agreement, just like it sounds, prenuptual before your marriage. So this is something that you guys will consider and work on back and forth. You know, it can be revisions back and forth. Make sure that it's everything that everyone wants and the understanding is correct. And you'll sign that before you ever even walk down the aisle. It's out of the way. Consider it part of your wedding planning, right? You got to look for a dress. You got to look for a venue. You have to get the flowers. You have to get the table linens. You have to get the silverware. You have to get the prenup. Put it on the list. I suggest all wedding planners, if you're listening, put it in your list of things to do. Prenup. Put it on the list. And let's talk about why you might need a prenup before we talk about the difference between a prenup and a postnup. But anybody that's coming into a marriage and you have significant assets already accumulated. Let's say you own a business or you own property or you have significant assets in retirement accounts, investment accounts, whatever. Or let's say you anticipate um acquiring a lot of assets during the marriage or being very successful during the marriage, growing the value of your business during the marriage. You can protect all that by entering into a prenuptual agreement that defines how those assets will be divided in the event of a divorce. So, if you're in those categories and you don't consider getting a prenuptual agreement, you certainly are setting yourself up for major exposure in the event of a divorce. >> Sure. I mean, how many times have you met with a client that said, "Gosh, well, you know, when we met and got married, all I had was debt. I was in school." Okay. So, you're in school for what? You know, you're in school to go make money. Who goes to school to not make money? So, I was in school. Okay. So, you know, you're about to head down a career path of some sort. All we have was debt. Well, yeah, because you hadn't accumulated anything yet. So, now is the easiest time to get an agreement in place because there's nothing to really fight over now. So, let's just go ahead and set forth what would happen if those things happen. Now, like you said, a lot of people do have something. I think prenups are extremely common in second marriages where you've already been through this rodeo one time and you've protected what you had the first time around and you're coming into this. this is truly yours. If it's a second marriage, I think it's extremely common. And a lot of times it's both people's second marriage and you think, gosh, I'm even scared to get married again because what if we get divorced? That was terrible. I don't want to go through that again. So, avoid that sort of drama by getting a prenup. Don't be afraid. Like, I've heard people that say, "I didn't get remarried because of how bad my divorce was." This is a simple cure to that. Enter into a prenup and the fear of a potential divorce is gone and you get to have a happy marriage. >> That's true. And you know this comment I'm about to make will lead us into the discussion of a post-nuptial agreement. But it is much easier to get a prenuptual agreement than to get a postnuptial agreement. Prenuptsial agreement is a precursor to marriage. Right? I mean you can easily look at your fiance and say sorry babe I really love you but I've got a lot of assets I've accumulated. You certainly understand right? I mean I acquired all this before we got married. So, you're not really making a claim to this anyway, but hey, if you're not willing to sign this, I'm not getting married. And most of the time, they will understand that. You know, if they love you, >> their motives are pure. Yeah. >> If their motives are pure, then they're going to sign. If they're not, you need to run the hell the other way. Right. But most of the time, a reasonable person is going to agree with that and say, "You're right. I don't want any of that. If this doesn't work out, I'm not trying to go after anything that you accumulated before we got married." Now, that's different than if you don't get one and then you get married and now what's the famous saying? Somebody's already got the cow for free and the milk for free, right? And now you're trying to come and say, "Hey, I know we're already married, but I'd like you to sign a postnop agreement that dictates how our assets are going to be divided in the event of a divorce." Right. That is a non-starter a lot of the times. >> Yeah. So, if you think of it this way, pre-marriage, nobody has any rights. Like there is no contract. There is nothing set forth. You're not entitled. We're not married. You're not entitled to anything of mine. I'm not entitled to anything of yours. There are no rights established. Once that union happens, once you become legally married, suddenly all these rights are established. The right to potential alimony, the right to equitable division of literally any and everything. Real property, vehicles, businesses, retirement accounts, everything has a marital component. Now, now that doesn't mean that suddenly you have erased your separate interest or your premarital interest, but everything once you sign that contract has a marital component to it. So, you even if you're entitled to it, you still have to fight it out. But no rights are established. Easy. Because nobody has any rights established like we're never going to establish those rights if you don't sign this piece of paper. A postnup the parties have these established rights. you're guaranteed certain relief by law. So why would you wave that, >> right? There's not as much of an incentive. There's no leverage. However, some people are still able to pull it off. A post-oper agreement does the same thing as a prenuptual agreement. It's just an agreement that you entered into after you get married that dictates how assets will be divided in the event of a divorce and also whether or not there would be alimony and if so, how much. So you can still do it after you get married. There's just less of an incentive for the other person to agree. Now, people still do it. We still do them all the time where for various reasons, people decide that they want to do a post-nuptual agreement. I'll give you some examples. Couple examples I've had recently. One case was the parties didn't really have anything before they got married. So, there was no reason to get a prenuptual agreement. But then during the marriage, this was a couple where they decided they were just going to keep all their stuff separate. Husband was a business owner, wife was a business owner. She had her separate business accounts and personal bank accounts and retirement accounts. and husband had his. I think it was one of those situations where they had an agreement between themselves on how they were going to split the expenses. And they just said, you know what, this is a business decision that we want to make. It's not an emotional decision. If we ever get divorced, you know, I don't have any interest in my wife's stuff and she doesn't want anything of mine. And so, they agree just from a business standpoint to go ahead and enter into that postnupal agreement so that if things ever went south and they decided they hated each other, all of a sudden they were both protected. The other example that I had recently is my client caught her husband cheating and they went to counseling and she was not an idiot and she said, "Look, I don't really trust you, but I'm willing to stay in this and try and work it out if you sign a poster agreement." In other words, if we stay together, we're good. But if you cheat on me again, you know, and I decide we're going to get a divorce, I want to make sure I'm protected. And so we drafted a postal agreement and they stayed married. I haven't heard back from them yet. I guess it's working out, right? But we very much did draft a postnopal agreement as a contingency upon them staying married that dictated how everything would be divided in the event of a divorce. And he signed it and apparently all is well currently. >> Yeah. And I do think that that is a big benefit of a postnup in some people's situations. Um, when trust is broken, it's hard to gain back and there are certain steps that you can take to just show a very high level of trust. So, if you are the person who committed an infraction, no matter what that is, cheating or something else, and you're working to gain back trust, what bigger show of trust could you possibly give and say, you know what, I'll even say in the event I do this again, look, cards on the table, you're going to get all this. That's how much I'm committed to telling you, I will not make this mistake again. So, it can be a huge show of trust to try to repair a relationship and keep a marriage intact. >> I agree. I agree. And uh I think it's important for folks to know that in a prenuptual agreement and a postnuptial agreement, there are certain things that cannot be included. >> Correct. So we can divide assets, we can address how alimony is going to be addressed, attorney's fees, we can pretty much address all financial issues. But what a prenuptual agreement cannot address and what a post-numptal agreement cannot address are custody, parenting time, and child support. Even if you put it in there, it's going to be void. It's not going to be enforceable by the court. Frankly, if you put it in there, you run the risk of your whole prenuptual or post-nuptual agreement being thrown out. So don't even put it in there at all. But those are matters that are subject to the court's discretion. If you enter into a prenuptual agreement or postnopal agreement regarding the finances, frankly, the court's not going to care, right? They're going to sign off on it because y'all are adults. Y'all can do what you want. But when it comes to custody, parenting time, child support, those are matters that the court has to approve and they will not uphold any provisions that dictate in advance what custody is going to be, what parenting time is going to be, or what child support's going to be. And that's frankly fair because you don't know what those circumstances are going to be at that time. I mean, y'all might be having a certain arrangement in place currently regarding caretaking for the children and everybody's making a certain amount of money. So, as it sits right now, we could decide probably what custody, parenting time, and child support would be like, but then you get divorced 5 years later, you know, your circumstances may be completely different. And that's why you can't pre-address custody, parenting time, and child support. >> That's right. By function of law, those things have to be addressed at the time of the divorce, no matter what. >> So, Christine, let's do this game real quick. Let's give these folks some tips on how to have this conversation with your spouse because I know that's what they're asking. They're thinking, right? Whoever's watching this podcast right now is saying, I really want >> sounds great, but great in theory. What do I do in practice? >> How do I pull this off? How do I have that conversation with my spouse or my fiance? Any tips? >> So, I think first open and honest communication is a foundation to marriage period. If you find yourself unable to breach this topic, that's kind of a red flag. And I'm not saying you shouldn't get married, but you should definitely work on improving communication skills if you can't simply breach this topic and have this conversation. Now, I'm not saying the conversation is going to go exactly how you think, but if you're literally scared to bring this up to your partner, the person you're about to commit to spending the rest of your life with, that's probably a problem. To me, this is the same type of conversation as going ahead and saying, "Now, in the event I die, nobody wants to talk about death. Do I want to be cremated? Do I want to be buried? What would I want if I'm ever put on life support?" That uncomfortable conversation. Do I want you to pull the plug? Do I want you to take these extra life-saving measures? These are conversations people who intend to spend their life together have. I would liken it to that same thing. So it's just the uncomfortable conversation that we all have to have at some point if you want to share your life with another person. So explain it in that way. You don't have to just know that. You can talk to them about that. All right. A lot comes with agreeing to be with you for forever. Um we have to talk about these sorts of things. Do we want to have kids? Do we not want to have kids? Are we religious? These are all conversations that need to happen. I would just say throw it in to the mix. I don't think it's any more uncomfortable or difficult than those other difficult conversations. It just doesn't seem to be quite as common for some reason, but make it common. >> There you have it, folks. A prenuptual or postup agreement is not about distrust. It's about protection and peace of mind. So, an experienced divorce attorney can help you customize a plan that best works for your life and your financial circumstances. Be sure to tune in uh and subscribe. That way you can see all of our future podcast episodes either on YouTube or your favorite podcast app. We appreciate you always joining in and we'll see you next time.