A reader recently emailed me this question and I wanted to write a post about it (anonymously, of course) as it touches on a number of key issues. The reader writes that he has been with his partner for nearly two decades. His partner cheated on him once, several years into the relationship. Having overcome that betrayal, they got married in the past year. Now, the partner has cheated on him again. After this second betrayal, the reader is wondering if he should get a divorce to protect himself and his assets (namely, his retirement account). His partner says it won’t happen again but, rightfully so, the reader is concerned and wants to know if he can create a postnuptial agreement that states if the partner cheats again, he can have no part of the retirement account in their divorce. If not, he asks if he should just get divorced now while the marriage is young so the partner can’t take much money. Our reader is married in California.
A bit of background. California is a community property state. That simply means that any property you or your spouse acquire during your marriage (income, real property, retirement accounts, etc.) belongs to both of you and must be split equitably during a divorce. Many people enter into prenuptial agreements before a marriage to predict what will happen with their assets in the event of a divorce. If a prenuptial agreement is present, a court will divide the assets exactly as the parties have agreed (given that the agreement is valid and enforceable). Many couples do not have significant assets at the time of their marriage and do not think a prenuptial agreement is necessary. Others are opposed to it for moral reasons (it’s almost like saying “Bae I bet we’ll get divorced.”) Our reader seems to be in the category of having no agreement. Thus, if he gets divorced, a court will treat his retirement account as community property and split it between he and his partner based on the number of years they have been married. Anything you contributed before the marriage remains yours.
Reader seems to want to make things work with his partner but still protect himself. That is where a postnuptial agreement comes in. A married couple can always enter into a postnuptial agreement (which is literally a prenup, but after you are married). As long as both of you agree, you can create one. Reader wants the postnup to say “if you cheat, we are getting a divorce and you can have none of my retirement account.” This is what attorneys call a “lifestyle clause.” Many Hollywood celebrities have this type of clause in their prenups. I read that if Justin Timberlake cheats on Jessica Biel, she gets $500K. The question is, will a court uphold this agreement? In California, courts have deemed these lifestyle clauses unenforceable. That means, if your divorce goes to court and you say he violated the clause, he can say “these clauses are unenforceable in California” and he will be right. Many attorneys will still tell you to include it in your postnup. That’s because many times a divorce will not go to court and a spouse will just agree to what they have signed. For celebrities, they may not want the press of cheating to be unveiled in court so they will just agree and walk away.
So…where does that leave the reader? First, you can have an open conversation with your partner. Explain to him that you want to make things work but if you get divorced you don’t think it’s fair that he gets any of your retirement that you have worked so hard for. If you create a postnup with no lifestyle clause that just says “you don’t get my retirement if we divorce,” that is completely enforceable. These conversations are uncomfortable, but I’d imagine it’s just as bad as making him sign the lifestyle clause. You can also try to include it and hope he just follows what the agreement says. A good lawyer will include a severability provision in your postnup, which means that if one section is found to be invalid, the rest is still good. You can also just divorce now before his stab at your money gets any larger. There are a number of ways to approach this and only you know what works in your heart (and your wallet).
Final Note: California is a no fault divorce state. That means a court will never punish a spouse for cheating or give them any less than the community property laws say to. #whack.
Questions, comments, concerns, think you may need an attorney?