Can a postnuptial agreement save your marriage after one spouse is unfaithful?
by Evan Hochschild
After having represented thousands of people across southeast Texas, the family law attorneys at the Law Office of Bryan Fagan, PLLC like to think that we understand a lot of the characteristics that can make a marriage successful.
It doesn’t matter who the spouses are, what their backgrounds are, or how much money they make certain hallmarks of a good marriage ring true across the board. In this writer’s opinion, at the top of that list of characteristics are trust and communication.
I realize that it’s unlikely that anyone reading this blog post is surprised that either trust or communication is included as important characteristics of a good marriage. But in the simplicity of those two words lie their importance.
There are a lot of other good qualities to have in marriage but few others will have the impact that trust and communication do. The next question is this- what happens when one of those qualities is compromised by a spouse’s actions?
It is unfortunate that many marriages that end in divorce do so because of infidelity- one spouse (or both) going outside of the marriage to have their physical or emotional needs met.
How can spouses deal with the marriage after this occurs? More and more people in Texas are meeting this challenge by creating “marriage contracts” that take this sort of occurrence into account.
Postnuptial agreements and infidelity
The process of reconciling with a spouse who has cheated on you can be one of the most emotionally taxing and difficult experiences you will ever go through.
The trust that I mentioned in the opening to this blog post will need to be re-established and there is no one way to start that rebuilding process. Some folks try counseling or therapy as a means to start communicating better with one another.
For those that have tried that route without experiencing success, they would like a post-nuptial agreement that centers on infidelity can be an option.
The basis of a postnuptial agreement is that it is a contract of sorts that married people enter into after they are already married. You’ve probably heard of pre-marital agreements or “prenup” before. These are contracts that parties sign off on regarding assets/debts prior to the marriage that takes effect once the “I dos” are said.
A post-nuptial agreement takes effect immediately, on the other hand. In the area that we are discussing, many married couples are essentially allowing a faithful spouse to be paid a certain sum of money by an unfaithful spouse if the cheating ever occurs again. These sorts of agreements are given the nice-sounding name of a “lifestyle clause”
Why do spouses enter into post-nuptial agreements?
These agreements are supposed to be a response to one spouse’s actions when the faithful spouse is not yet ready to give up on the marriage. Many unfaithful spouses want to assure their spouses that they will not act in this way again and are willing to put their money where their mouth is.
If you are attempting to prove to your spouse that you will not act this way again, contracting with them to pay a large chunk of money in the event that you stray is a good start by some folks.
I don’t know that I would agree with this reasoning, but many spouses view the marriage more along the lines of a business relationship than anything else. Therefore, it is easier for them to see their spouse’s willingness to pony up some money for a future act of infidelity as a positive sign. Whether these sorts of postnuptial agreements work is a different matter altogether.
One memorable agreement we drafted for a wife as a result of her husband having had an affair with a woman he had met on the internet. The husband never actually met this woman in person, however, she had managed to convince him to give over $20,000 dollars.
When his wife found out about what he had done she was understandably upset. Rather than divorce, he agreed that he would sign a post-nuptial agreement that would result in her getting just about everything in the marriage should he screw up again.
Do postnuptial agreements based on infidelity succeed in most marriages?
Although the frequency with which these sort of agreements are entered into is rising in my opinion, they are rising among upper-class people more than middle-class people. For one, middle-class people don’t have the sort of money available to them to essentially pay their spouse for any future instance of cheating.
If you find yourself in a situation where you have cheated on your spouse multiple times, it’s more likely that you’re just going to hire a Texas divorce attorney and end the marriage rather than spend money to draft a post-nuptial contract that commits you to pay your spouse money. So, for the average middle-class Texas family, a post-nuptial agreement may not be an option to consider at all.
Even for the more wealthy people, these agreements may appeal to, whether or not a family law court in Texas will enforce them is a separate matter altogether. It would seem that an agreement that attempts to restrict the behavior of one spouse will need to be drafted very carefully in order to have a court enforce its provisions.
Generally speaking, an agreement made by two people will be enforced in Texas- that general policy keeps the courts from being further overburdened by litigants.
By opening up this Pandora’s Box, however, spouses may think that by agreeing to a contract that covers infidelity that they are doing themselves a favor by settling an issue between themselves rather than involving others.
If you find yourself in a situation like this, however, what you may be doing is pre-acknowledging that cheating will occur again in your marriage. Having this reality staring at you in the face every day will most likely cause you to view divorce less as a last resort and more as a means to take advantage of any contract provisions that you stand to benefit from.
The Law Office of Bryan Fagan, PLLC- Attorneys you can trust
Marriages today have many obstacles to avoid to be successful. If you find yourself in a marriage where you believe that all alternatives have been tried and that a divorce is the likely next step please contact the Law Office of Bryan Fagan by calling 281-377-3167 , PLLC. Our postnuptial agreement attorneys represent clients across southeast Texas and understand the issues that are facing you and your family. A consultation with one of our licensed family law attorneys is free of charge and can help you decide what the next step is for you and what is in your family’s best interest.