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May 18, 2010

New Marriage Fix: Postnups

Never mind prenups. There's a new way to make cheating spouses pay.

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sandra bullock with jesse james

Photo Credit: Getty

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This spring, as Jesse James's alleged mistresses paraded out of obscurity, exposing his alleged extramarital activities (and an abundance of tattooed flesh), his wife, Sandra Bullock, kept a low profile. Retreating to an undisclosed location, she reportedly sought the counsel of family and close friends. As of press time, divorce looked imminent, but if she has a change of heart, she'll probably be roundly advised to do one thing: Get a postnup.

"Postnups are the new prenups," says Stacy Schneider, trial attorney, former divorce lawyer to the rich and famous, and author of He Had It Coming: How to Outsmart Your Husband and Win Your Divorce. According to a recent poll, 50 percent of matrimonial lawyers reported a spike in these contracts, which are legally binding in most states and offer married couples the chance to rewrite the ground rules on everything from money to property to — most commonly — cheating.

Tiger Woods's rumored agreement to immediately pay Elin Nordegren a cool $5 million to stay in the marriage, with the possibility of paying an additional $55 million down the line? A postnup. And when David Letterman came clean about his affair, he may well have signed a postnup with a "mistress clause," which guarantees his wife a check should he stray again, says Sheila Agnew, a matrimonial and family law attorney in New York City. "His wife knows that a subsequent divorce scandal would not be healthy for his career, so it's an opportunity for her to cement her financial stake in the marriage."

It's unknown whether Silda Spitzer demanded a postnup from former New York governor Eliot Spitzer when he got caught with a call girl (postnups are confidential), but she certainly could have done so, says Agnew. "They wouldn't likely have had a prenup because they married in 1987, when few 'ordinary' people got them," she notes. "But after the scandal broke and he said he wanted to make it right, she could have asked him to put his money where his mouth is."

But isn't getting a postnup like putting a dollar figure on your dignity? Schneider doesn't see it that way. "Women are merely being compensated for their husbands breaking their vows," she says. "In light of the suffering and humiliation that the wives go through, it's a small victory." And of course, husbands can always get postnups, too.

These days, postnups are even coming into play at work. Case in point: Hedge funds have been known to demand that high-earning principals with a stake in the company sign such agreements to ensure that their spouses won't walk away with half the business in the case of a divorce. Sometimes these types of deals can get downright shady, says Agnew. "In one case, I recall that the wife wanted to have a baby and the husband was ambivalent. Finally, he consented, if she agreed to sign a postnup that provided his bonus not be considered marital property," she says. In other words, the bonus bucks were entirely his own.

If all this doesn't sound very romantic, it's not. Postnups are often far more contentious than prenups. "You're basically negotiating the terms of your divorce before it happens, if it happens," says Schneider. "Most couples hire separate lawyers to negotiate the best terms for them. It's very stressful, and it pits a couple against each other." Still, for some women in problem marriages, going through the unsavory experience may be worth it. "For high-profile or celebrity spouses especially," says Schneider, "nothing helps a humiliated wife like a nice large check from a wealthy, cheating husband."


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