Can someone give me a sense of whether this is a fair settlement?

[catcuriosity]

DH and I are in a bad place, and seeing a therapist to try and get to a better place.

Unfortunately, last year, DH went to see a solicitor about what would happen in the event of us splitting, and I got sight of the notes from that meeting, where his very aggressive lawyer listed how she could minimise the amount of maintenance he would have to pay, and how he could fight to keep 50% of the equity.

We often come back to this in arguments, so one of the things our therapist has suggested is that we get a post-nup agreement which sets out what happens if we do split, agreed by us in calmer times, to negate the need for aggressive lawyers if the worst happens.

The idea being is that it takes the threat away from me, I can calm down and work on the now instead of being on high alert for a potential future legal fight, and that it also builds trust by showing he would put DC first and not screw down maintenance.

We know the process required to ratify the post-nup, and the legal costs required, but we have to agree the contents between us and agree that it is fair to both sides.

However, I wonder if I have lost perspective on it now, so would welcome your opinions on whether this is fair (not whether I would be able to squeeze more out if it went to court!)

We are both high earners, but DH currently earns about 30-40% more than me.
The equity in our house would allow us to either stay in the same area (SW London) but downsize to flats, or move further out to be in a house.

The proposed post-nup suggests equity split 60/40 in my favour which I think is what any court would award
Then DH is proposing we add up the total costs for DC (nursery/school fees, clubs, sports, childcare etc etc) and for him to pay 60% of those, up to a total of 25% of his salary
I would also get 25% of his annual bonus as a contribution towards holidays etc
Our pensions are similar, so we leave those alone
I don't have any claim on a potentially-large inheritance DH will get at some point

DH has suggested it would get reviewed every 3 years in case our relative earnings had changed, and I've suggested an infidelity penalty, where if he has an affair, I get 65-70% of the equity

Wise MNers, what do you think of this?
Anything missing?

You had me up to the financial penalty for Infidelity. Surely that has the capacity to make it all very messy.

Where would the kids live? How their time is split may well impact on equity split.
And the non resident parent would still have to pay child maintenance irrespective of what you each earn and what you agree on school fees etc, unless care was shared 50:50

No court would change equity split because of infidelity

Does it?
Surely it is just 'in the event of the divorce, equity is split 60/40 in favour of the wife.
Except if divorce is on the grounds of adultery committed by the husband, in which case the equity is split 65/35 in favour of the wife'

And yes, there is a reason I have suggested that goes in...
He likes money enough that it would focus his mind if he got tempted to wander

It wouldn’t be worth the paper it was written on.

You can’t financially penalise someone for having an affair.

It sounds like your marriage is over & you should separate IMO.

Any lawyer worth the money you pay for them is going to suggest things in your financial favour.

You’re both high earners so what’s the worry over finances? It sounds like you will be OK no matter what the settlement.

The infidelity penalty is a terrible idea. Divorve courts don't usually factor in infidelity to settlements, and as PP said it could make things messy and unpleasant. How do you define infidelity? An emotional affair? Kissing another woman, with no sex? What if you split for other reasons but he gets a new partner before you've finalised the divorce - are you going to try and allege infidelity then?!

Why is he penalised for infidelity, but there's no infidelity penalty in there for you?

If you're a high earner, why can't you pay for your own holidays?

I'm a high earner and have married into a wealthy family and I think this all sounds a bit tacky, personally.

Have you asked your own solicitor what you would get ?
I think it depends upon the ages of your Dc when you split.

How did you “get sight” of the notes from his private meeting with a solicitor?

Do you see his visit to a solicitor as a betrayal?

It sounds like all this is about money & not love.

I would be resident parent with EOW, plus half holidays etc and potentially one night mid week if it wasn't too disruptive
Me getting the larger chunk of equity would allow me to stay in our area rather than moving further out, which would allow us both to watch sports matches etc so more of a co-parenting model

I know a court wouldn't award an infidelity penalty if we just went down the straight legal route, but a court wouldn't override our pre-agreed post-nup that included one

And I think that with a SHL, I would be able to get a 65/35 equity split if it went to court, so there wouldn't be any incentive in him wracking up legal bills to fight it

You’re missing the point - if you break up & he disputes the post nup no court will enforce it. This “agreement” is only in place as long as you both agree to it.

If you can’t trust him to be faithful & need an infidelity clause them then you can’t trust him to insist to the court that this post nup agreement be enforced.

You’ve lost sight of the bigger picture here, which is that your marriage is over, by the sounds of it.

It sounds like you're trying to browbeat him now into being financially disincentivised to leave the marriage. Hardly the sort of thing that seems like you're trying to fix things in counseling.

@simone1863 - absolutely agree. It sounds controlling. A spouse should not be penalised because they were so unhappy they went to see a solicitor. It’s like he is being punished for finding out his rights & this is the punishment.

It sounds like this contract is what the OP wants, not the husband.

He sounds unhappy, they both do.

Also to suggest it is only the husband who is money hungry when this post is basically not even about the kids & just money screams hypocrisy to me.

Why isn’t he entitled to ask for 50/50?

To answer all the questions:

It would be worth the paper it was written on if the proper legal process was followed, which includes us both getting legal advice on it, and then it being properly ratified. We've spoken to solicitors on this.

I don't have my own solicitor, other than for the purposes of sorting out the post-nup. I don't want to spend £000s on legal fees telling me what I could potentially get if I got combative. I want to know if this is generally fair...

Yes we are both high earners, but we live in an expensive area and have high outgoings. The amount of maintenance we are proposing to include in the Post-Nup is about double what the CSA calculator would give, and is the difference between me being able to stay in our area or having to move out, or having to take DC out of school/nursery

I got sight of the solicitors notes because DH showed them to me
I didn't see it as a betrayal as such, but was absolutely terrified at how combative she was in tone, and how quickly she introduced the concept of minimising his payments to me
I can easily see how he could get whipped up to go along with that if he saw her in anger (rather than the 'ducks in a row' meeting he had) and therefore how quickly it would escalate. We are both quite combative by nature (and career)

I can pay for my own holidays, but realistically, I would be the one taking DC skiing or to the beach and having to pay the costs, where as DH would probably take DC to his home country to see his family
Therefore his contribution covers the higher costs of holidays for me+DC

And yes, the post-nup is about money, because I've had my world shaken and destabilised by the threat of him ripping the rug from underneath DC

Our therapist believes that putting this to bed will give me a base of security and safety that will allow us to work on the wider issues without me having the residual fear of losing everything in a divorce

Gutful, you are making some wild assumptions...

As you have glossed over it in my op, the idea of the post-nup came from our therapist, and is something both of us agree to in principle

We have been asked to come up with it ourselves, not with a lawyer, to be something that we both see as 'fair'.
My overriding requirement is that DC shouldn't suffer a drop in lifestyle as a result of a divorce, and therefore our settlement should put that first. Hence the maintenance being calculated by adding up their 'running costs', rather than an arbitrary figure.
The equity should be split to allow me to stay in the same area near friends, schools etc and to allow DH to drop in for sports matches

I'm not aware of it being the norm for equity to be split 50/50 where there is one resident parent and one with EOW access. Certainly none of my friends have had this. The only 1 who did had 50/50 care split across both parents
DH doesn't want 50/50, and his job wouldn't allow it

@catcuriosity

Does it? Surely it is just 'in the event of the divorce, equity is split 60/40 in favour of the wife. Except if divorce is on the grounds of adultery committed by the husband, in which case the equity is split 65/35 in favour of the wife'

And yes, there is a reason I have suggested that goes in...
He likes money enough that it would focus his mind if he got tempted to wander

He likes money enough that it would focus his mind if he got tempted to wander

so you are in effect trying to buy his "love" ?

Ha, no
Love cannot be bought, certainly not from my DH
But if he can be incentivised to not destroy my world through an affair, even an exit affair, all the better

What a sad perception of married life you have . Why on earth are you hanging on to this business relationship ?

I think your therapist has given you a let out clause, not a security base, but that could be a matter of semantics...

Have to agree with others about the infidelity clause - if applies only to one of you it's not fair - either both or neither. Contracts have to be fair. I think that point alone would undermine how a future court would see and apply the post-nup.

Also can't help agreeing with others that if you've got to this point of financial negotiation then there is little if any trust left between you both. How does your therapist propose to get this back ? Are you both prepared for the long haul that building trust back will take. Frankly I think you will both save yourselves and your children time, money and emotional turmoil if you separate now. I get you may want to give the marriage every possible chance - but in the meantime you have children witnessing 2 highly competitive parents fight it out - not pretty.

Kind of dramatic language choice there, that him seeing a solicitor was him going to “rip the rug” from under his children. Wanting to end an unhappy marriage means he is thinking of ending the marriage with you, not trying to do anything to his children except be a happy parent.

You’re really taking this whole “marriage is a contract” thing very seriously.

Also ski trips are a luxury & if you want to take the kids skiing then isn’t that on you to fund?

But if he can be incentivised to not destroy my world through an affair, even an exit affair, all the better

What an incredibly sad view on your marriage.

Think you should take yourself off and get legal opinion before you see the therapist again. Are you sure your therapist is working towards saving your marriage, or taking a a roundabout route to a mutually agreed decision to part ?

Honestly if you really think you need to do this, your marriage is already over. If you are both so focused on what you'd get in a divorce, just get one. None of this says 'we're working on staying together' it says 'we are sorting things for when we eventually split'

Would the infidelity clause work both ways?

I'm not sure why you created this thread. Several times you have been told it is unfair to penalize your DP for an affair in a post-nup and you have argued back. You requested these opinions, so why are you getting so defensive?

You sound angry, not calm. Not in a state of mind to agree a post nup. Therapists are only human, they aren't all-knowing gods, it is entirely possible this therapist has advised you badly.

I think the settlement is extremely generous to you. If I was your DP I would not agree to this holiday fund idea. After all he may indeed wish to take the kids skiing, or on a lovely vacation with a future new partner. Why should you be allowed to assume what holidays he will wish to afford?

In his shoes there is no way on earth I'd sign this agreement.

@DPotter good point - it’s possible the OP is not listening in therapy & this is an attempt to guide her towards accepting separation terms.

Why did the husband go to see a solicitor & why have his feelings changed? Why does he now want to stay in the marriage?

This therapy is clearly a last ditch attempt to save what sounds like an unhappy, emotionally unfulfilling marriage.

Gutful, I don't know if you are deliberately misreading my posts to be provocative...

Seeing a solicitor didn't rip the rug
Seeing how easily a solicitor was encouraging him to be combative and offering him ways to minimise the amount of maintenance he should pay, plus offering him ways to get out of paying anything towards school fees, was very much did

I know him very well and know how easily he could potentially be whipped up into turning this into a fight. I have the same tendency
Our therapist also sees this in both of us, so has asked us to use a time of calm to write down what our settlement would be, and make it legally binding.

The primary purpose of this is to remove a source of conflict, mistrust and insecurity and to allow us to build our relationship

Nothing, absolutely nothing, in my posts should give anyone the legitimate ability to judge my marriage as over. It isn't over, it is struggling, and we are both working hard to repair it, including address the insecurities and triggers we both have.

I am well aware skiing is a luxury. But it is a luxury we both enjoy, and we want DC to enjoy.

DH recognises that he would rather pay me money to be able to keep taking DCs on holidays that he can't, than for them to miss out because I can't afford them.

This thread isn't 'tell me if my relationship is over'
It is 'tell me if this is fair'...

Yes the infidelity clause would work both ways, as there is 0% chance of me having an affair, so I'd gladly sign it

For those asking what counts as infidelity, the law has a clear definition for divorcing on the grounds of adultery, so there wouldn't be ambiguity on that.

The therapist is very much of the view our marriage can be improved, strengthened, etc
'Saving' makes it sound like it is on the last legs, and it isn't
It is a good marriage with a few bad elements, due to some horrible insecurities on both sides, as a result of some awful external factors that have happened in the last few years (including losing a DC, and the violent death of a family member)