"Till death do us part" lost its cachet long ago for many Americans. Divorce is commonplace. And the rise of the prenuptual agreement has already clouded the bliss of more than one wedding day. But after the exchange of vows, most married couples probably do not expect to endure a new set of negotiations over money if they should untie the knot.

No more.

What the prenup did for the soon-to-be-wed, the postnup now promises for those already ensconced in the marital slog. Like a prenup, a postnuptial agreement is a contract between two spouses that spells out each partner’s financial claims in the event of a divorce. So while marriage has been said to be a series of compromises, a postnuptial agreement demands that some of those compromises be written in precise, legal language.


“It’s the last bite at the apple, and the more people hear about them, the more value they see,” says Raoul Felder, a New York divorce lawyer who has represented Rudy Giuliani, among others. He calls the postnup a “wonderful tool” against financial exploitation and personal intrusion.

The only problem? “You need two people to sign onto it,” he says.

Unlike those seeking a prenup, the spouse who wants a postnup has little leverage in forcing the issue. After all, they’re already married: It’s too late to threaten not to show up at the wedding.

Still, many couples are agreeing to rewrite the rules of who gets what, either in order to keep things civil, to gain peace of mind, or to buy a little time.

And in a surprising number of cases, it’s not a spouse who’s pushing for a postnuptial agreement; it’s the spouse’s employer.

There have been real estate developers who wanted to give trusted employees a small portion of a deal but also wanted the employees’ spouses to sign postnups first, says Eleanor Alter, a lawyer who has represented Robert De Niro, Christie Brinkley, and Mia Farrow.

“I did this for about 20 employees on one particular asset,” Alter says, explaining that the developer did not want to have to deal with the time, expense, and potential public exposure of discovery if one of these new partners went through a divorce. The developer also did not relish ending up with a bunch of spouses as part owners of the asset.

Hedge funds have also expressed similar concerns about their new partners, says Bernard Clair, divorce lawyer to such socialites as Jocelyne Wildenstein. He says that the managing partner of one hedge fund told a client that he had to have his wife sign a postnup before he could become a partner.

“That was the price of admission,” Clair says.

“Hedge funds are particularly sensitive to this because nobody can get inside [their finances] except divorce lawyers. Even the [Securities and Exchange Commission] needs to promulgate regulations to get into them.”

Sudden wealth—whether from working in hedge funds or elsewhere—can also trigger the need for a postnup.

“Even with declines in the divorce rate, people know they still stand a pretty good chance of getting divorced,” says Stephanie Coontz, a professor of history and family studies at Evergreen State College in Olympia, Washington. “And there is a higher divorce rate among people who have experienced a high fluctuation in wealth, including a good fluctuation. It leads to this sense of disorientation, this idea that I’m going to grab my pile while I’ve got it.”

Nobody knows how many postnuptial agreements have been signed, but a recent poll by the American Academy of Matrimonial Lawyers, a trade group, found that 49 percent of its members had seen an increase in postnups over the last five years. And Felder, whose firm does only matrimonial work, says his nine lawyers have worked on more than 100 postnups so far this year.

“That’s out the door compared to 2005,” Felder says, estimating that the number of postnups done at his firm has increased by 10 to 15 percent a year over the last two decades or so. “It’s becoming a major part of a divorce lawyer’s business.”

Lawyers and sociologists point to several reasons for the increased interest in these contracts, which try to wall off a specific portion of wealth from the marital pie. One of the things that got the ball rolling was the divorce of Gary Wendt, who was the chief executive of G.E. Capital at the time.

Lorna Wendt, a stay-at-home mother, sought half of her husband’s assets, contending that she was essentially his business partner, having supported his career over the years. In 1997, she was awarded about $20 million, or nearly half her husband’s hard assets.

The willingness of the Connecticut court to delve into how much Gary had made during the marriage and to designate such a large portion of it as marital property was a watershed moment, given that, prior to the Wendt case, the courts had generally sought to calculate how much a stay-at-home spouse needed for support, not whether that spouse was entitled to a large share of the couple’s total wealth.

“That was a wake-up call to a lot of people who had accumulated a great deal of wealth since marrying,” says Evergreen State College’s Coontz.

Some seeking postnups are just trying to protect assets for children from a previous marriage. But many of those queuing up at their lawyer’s offices are already nine-tenths of the way to divorce and just don’t want to pull the trigger; they see the postnup as a way to take some thorny issues off the table. Others are laying the groundwork for divorce and want to tie up what could be some messy ends before popping the news. Lawyers say that spouses who are running family businesses or who are involved in partnerships may worry about losing control of their assets or about a forensic accountant leafing through their books.

Whether postnups are good news for modern relationships is another question. They can’t deal with important issues such as child custody and child support payments. And not all states give postnups the same weight, with lawyers saying they tend to hold up better in New York courts than in Connecticut or New Jersey courts, for example. Also, the agreements can often heighten the very concerns they are supposed to take off the table.

The postnups that seem to work best tend to be those that address the concerns of women who stay home to raise a family. The spouse who sacrifices a career to stay at home with children or quits her job to move with a spouse, can benefit from a postnup, because the agreement is protecting one spouse who is giving something up for the other.

But Alter says these cases are rare, adding that she’d rather steer clear of doing most prenups or postnups, “because it is so hard not to make the relationship worse.” Asked what she’d prefer, Alter responds, “I’d rather do a divorce.”