Q&A: What is the best way to negotiate a postnuptial agreement?

postnuptial agreement
First Lady Melania Trump

By Lisa Zeiderman

The postnuptial agreement is the less famous but no-less valuable sibling of the prenup. These agreements are executed after a couple gets married to settle their affairs and assets in the event of a separation or divorce. For an analysis of what marital circumstances offer the best time to negotiate a postnup, the First Lady of the United States, Melania Trump, provides a useful hypothetical case study.

The Trumps’ marriage has been the subject of much speculation, and reports of the President’s alleged extramarital affairs have done little to quall the media frenzy. Tabloid gossip and politics aside, the first consideration for anyone in a similar marital situation to the First Lady should be the negotiation of a postnup agreement to protect themselves in case of the eventual dissolution of the marriage.

There is a yet-to-be-settled legal question surrounding whether a sitting president can be sued so it is unclear if Mrs. Trump could divorce the president even if she wished to. That aside, there is little doubt that she may be uniquely placed to renegotiate her well-documented prenup agreement by putting a postnup in place that allocates alimony for the rest of her life and settles custody of the couple’s child. For anyone in a high-profile relationship, what better time to strike than when the news is pouring in about your spouse’s infidelities and they need you by their side?

Moreover, in Mrs. Trump’s unique case, if Donald Trump is eyeing a second term as president, he would arguably stand a better chance of reelection if his wife – who polls rank as the most popular Trump – was by his side. That puts her in a very strong position to negotiate a favorable settlement, that could include a ‘sunset clause’ in the event that the parties remain married for the duration of the presidency.

There are plenty of couples living outside the fishbowl of public life that face tough decisions around whether or not to remain married. When money is at issue – how one spends it, how one invests it, and whether one is earning it – a postnup may make more sense than a divorce. With a postnuptial contract, both spouses have the opportunity to negotiate a financial package that brings certainty to issues of asset division, alimony and in the event that there are children, even child support.

For those who have discovered that their spouse hasn’t been faithful to their vows, they should seize the moment to negotiate a generous postnuptial package that both protects and, more importantly, financially empowers them for the future. Sad as it is, the aftermath of discovering an extramarital affair is the ideal moment to ensure that you are secure for life, including a life that may include a future divorce. It is also the moment to recoup any monies that may have been spent on paramours instead of you and your children.

Whether you’re the First Lady or a stay-at-home parent while negotiating the postnup be aware that this contract will follow you through your marriage into a possible divorce. If the marriage feels rocky, be particularly wary of the postnup that is heavily weighted in your spouse’s favor. The postnuptial agreement may indeed be the first step in divorce planning.