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?

I think he's being generous offering anything other than 50/50

combatbarbie

A post-nup is similar to a prenup but obviously made after the wedding.

We draw it up jointly, and go and see solicitors separately, who look at it and say 'you could probably get more if you fought through the courts, are you aware of that?' and we say 'yes we are aware of that, but this is what we have jointly agreed to'
We then each get a solicitor's letter that says 'I've advised my client they could get a better deal with the courts, they understand that and are making this agreement with their eyes wide open'.

Those 2 statements get submitted along with the joint agreement and a schedule of assets, and the post-nup then is ratified

If we get divorced in the future, the post-nup becomes our default agreement, unless one of us can prove that we were duped into making it, or that circumstances have materially changed. So if I discovered DH had hidden assets, or if one of us was too ill to work, we would start from scratch.
But otherwise, the agreement would stand

So it is important that we get it right, and we have something that both of us think is fair

guilded
It was my understanding (mostly from seeing friends go through it) that the resident parent always gets more equity than the parent that has DC EOW?
So the courts would rarely look to award a 50/50 equity split unless there was 50/50 care?
Therefore DH isn't being generous, he is merely offering what the courts would almost certainly order?
I think he would consider 'generous' to be over and above what a court would require him to give?

@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

This is madness! Do you honestly think that the threat of him having to fork out more to you if you split due to him having an affair is a positive step? Why do you think you should get more than him? Why have you not even mentioned child arrangements? I’m amazed your dh isn’t already filing for divorce!

The extra for infertility is odd and wouldn’t get approved it it went to court

Both me and dh are high earners - over 100k plus each with him a bit more than me
Even married 14 years with 2 children and solicitor has said it would be 50:50 split if all assets, no spousal and cm based on no of nights

Why on earth are you together if you have this level of mistrust. Call it a day already!

Err soontobe60
I've conceded on the adultery point

And to answer your other questions:
Why do you think you should get more than him? Because I will be the resident parent, and earn less than him so have a lower mortgage capacity, therefore need a bigger deposit to get a suitable house
Why have you not even mentioned child arrangements? I have In fact, several other posters have commented on them
I’m amazed your dh isn’t already filing for divorce! He desperately wants our marriage to work, as do I. Isn't that amazing.

The extra for infertility is odd and wouldn’t get approved it it went to court

I hope courts don't make divorce settlements based on infertility!

Why on earth are you together if you have this level of mistrust. Call it a day already!

So you throw in the towel at the first sign of a problem in a relationship..?

What would the custody arrangements be? Ie will time be split equally in which case you wouldn't be entitled to child maintenance?

The infidelity clause does sound a bit ....tacky......and a bit controlling really?

Hi OP, I think your post nup idea is a really good one. It is very easy to get carried away with the fight when divorcing and the only winners in that situation are the lawyers. Way better to make a plan while you are both still respectfully talking to each other, and really sensible for both if you to recognise you might get carried away. Its in both your financial interests to do it this way, and if the finances in the divorce are not hotly contested you have a better chance at a good ongoing parenting relationship without animosity too.

The infidelity clause isn't enforceable, would be very difficult to prove and maybe so inflammatory at the time it could result in the whole agreement being tossed. So I would leave it out.

Also I think you child maintenance thoughts are impractical. Child costs change all the time, you are going to be constantly having to communicate about money and expenses to work it all out. And you wont want to be doing this after divorce, you both need to get on with your own lives. Would be better to make it simpler. Use the CMS calculator to work out what it should be and agree on that, a fixed monthly amount to the resident parent. And then perhaps agree school/nursery fees are separate and you pay a 60/40 split on those. Also decide if this continues till the end of the children's tertiary education.

Bonus sharing would fall under spousal maintenance so you will probably need to agree a term on it, as it wont last forever.

Also how long have you been married? I didn't think post nups had much legal standing if they were drawn up years after marriage - they had to be drawn up shortly after marriage if they were to have much standing in a divorce?

It way more than the first sign of a problem if you're drawing up prenups!

OP why would your kids have to give up pets / swimming etc? You're a high earner and said you could afford a house. It's not like you'd be going from a mansion in London to a one bed flat in a different city where they don't have their own rooms.

As a high earner with school aged kids, if you were the resident parent and can afford a house (as you said) then you could have wraparound care for school pick ups if not possible with your job, and even if he was a dick about money you could pursue child maintenance based on his high earning salary too. Why would any of that mean giving up pets or swimming lessons?

Plenty of single parents who aren't high earners have happy, healthy kids with pets and hobbies who do excel at them and excel academically.

I'm going to say something now that I don't want you to think is a dig or confrontational, I'm saying it because you're right in the middle of something hugely emotive and not thinking pragmatically - here goes - It sounds like you're fixated on not losing out and getting revenge should he cheat rather than focusing on what is fair, reasonable and healthy for all involved in the event of a split.

Do you think that might be at least a bit of what's going on? Can you use some solo counselling to explore that and shift your thinking a bit?

You mention the potentially large inheritance that DH will get at some point.

Is it possible that the amount might lead him to cut back on his hours at work if he decided he could afford to have a bit more leisure time? If so, that could potentially have an effect on how much of the DC costs he would be liable to pay as it's capped at 25% of his salary.

I don't know the age(s) of the DC but would you want/need a clause about how you would decide which school they should go to? (Either at natural transfer points or if one of you would like them to move to a different school).

I hope things are back on track for you both soon.

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

I think this is the bit that people are picking up on. You have to bribe your DH to not cheat on you. That's not a basis for a strong trust worthy marriage.

A post nup just stinks of distrust that you would be left high and dry if you were to divorce. You sound scared that DH will try to get as much as possible out of you. I don't know, it just seems very sad to me.

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.

Bottom line : he’ll take this route.

OP I can't really offer advice but I think some PPs have been very harsh. I'm sorry you have lost a child and another relative. This puts awful strain in relationships.

As you're both high earners, I'm not sure how likely it is you could fight to get 65/35. At the time of our separation, I was a SAHM and my husband was a high earner. Even with me having residency of the children who were very small, I think I got just shy of 65% share. In the meantime however, we spent over £200k on legal fees....

I agree with previous posters that the inclusion of an 'infidelity clause' spoils what could otherwise be an agreement made jointly in good faith.

"earn less than him so have a lower mortgage capacity, therefore need a bigger deposit to get a suitable house"

This isn't his problem. Just because you are demanding that you stay in the postcode you're currently in doesn't mean he has to fork out for it.

Your children are so young that they are in nursery and can't swim yet so I'm sure they'll cope if some things end up having to change.

You sound very inflexible and this all sounds like one big exercise in punishing your husband for whatever it is he's done. Not healthy and that comes across in your posts.

You obviously think you deserve more and won't be happy with the 60/40 split. The post-nup will get laughed out of court once his aggressive solicitor gets involved anyway so you might as well go with what he is agreeable to in this case.

Answering the questions...
@ivfbeenbusy I've said already custody would be EOW for him but if we were able to live close enough, him being able to watch sports matches, join in activities etc on 'my' weekends or days. He wouldn't want or be able to split time equally

We've been married 9 years

@WellIWasInTheNeighbourhoo
The CMS calculator only applies to salaries up to £80k/year. DH earns more than that. Hence looking at a formula that is based on the costs for DC and splitting them
We aren't looking at a penny by penny calculation, but more along the lines of 'nanny costs about £2k/month, school and nursery fees are about £2.5k/month, sports clubs and music lessons, food bills are about £500/month, so of the £5k/month for kids, I pay £3k, you pay £2k'
The CMS calculator would require him to pay me about £1100, I think
So our arrangement recognises that he pays his share proportionate to his higher income

He suggested reviewing it every 3 years

@youvegottenminuteslynn
If I got 60% of equity, my options would probably be a flat in our local area, or a house if I moved out. The move out would only be possible if it coincided with a logical time to move schools. I wouldn't want to do it at a crucial point for schooling...

With 50% equity, I would struggle to find a bit enough flat to have space for pets (we have 2 dogs and 2 guinea pigs!) so there might have to be a hard conversation there
With DH paying what the CMS calculator requires, there would be no chance I could carry on paying school fees, so that would mean leaving school
With CMS amount plus a 50% contribution from DH towards them, I could afford the other 50% but swimming and other activities would have to go

Therefore the arrangement is the only way I can find which keeps them in school, in clubs and in our area

Incidentally, my demands are all focussed on the DCs. I'm not trying to carve out a way for me to keep a fancy car, or a haircut budget. I'm fully understanding those will all disappear if we split, but I'm not prepared for DC to take a hit on the things that matter in their lives

@catcuriosity

I went through a divorce from a high earner, and live in the same area/same lifestyle you are talking about.
Few of the assumptions you are making about divorce are not quite correct and I don’t think the deal you are describing is great.

Mostly - the 3 year clause makes you quite vulnerable to him getting aggressive with money. It just moves it further into future where he’ll have more resources to fight you, and you’ll be in a weaker position to negotiate/fight.
Men who love money turn quite nasty with divorce. You never expect it and it happens over and over.
Don’t hope for the best case, don’t say - ‘but he isn’t like that’.
They all start with saying they’d do everything for their kids, would always support them. And then things change.

Most importantly - you need to know that you’d be OK in the case of divorce. In your place - I’d pay for a meeting with a solicitor, and bring them a snapshot of family finances. They will be able to quickly outline what you can count on in case of divorce, and hopefully it’ll put your mind at ease.
It would cost you just a few hundred, and certainly less than negotiating and drafting post-nups.
And in any case - I’d not enter into any post-nups where you are potentially put at a disadvantage - so you’d need to consult a solicitor. But if you go down that route it’s not different from negotiating a divorce settlement - bringing in all the stresses and bad blood that that entails. People don’t like parting with money.

But most importantly - and given that you mentioned that your H is from outside of the U.K. - I’d really advice you to make sure your family assets are protected.
People who like and have money, and who face uncertainty about their marriage - tend to try to ‘optimise’ their assets. They send money to family abroad, they set up trusts, they find various ways of reducing family assets.

Rather than doing a post-nup - get a really good snapshot of your joint financials and put safeguards in place.

PM me if you want to talk off line

I think the agreement sounds very logical...get it nailed down before anger clouds the issue and lawyers get a sniff of blood.

I agree that removing the infidelity clause is a good idea though, as that moves the while concept from a logical set up to a moral judgement/penalty. That holds more emotional attachment and is more likely to get messy.

OP are you happy? Fundamentally happy in this marriage? I can see you want your children to be happy but modelling positive relationships and setting boundaries in relationships is really important. Not skiing holidays. What would you say if this was your child writing these posts?

I think there are two separate issues here. Are you working on making your relationship stronger through therapy or are you working on an amicable split through a solicitor? The settlement generally sounds fair, the adultery clause is pointless though as pp have said. You are trying to control something which is out of your control.

I'm sorry things have been tough for you over the last few years.

Don't agree anything now, he only has to use his tough solicitor if you split & your post nup goes out the window. He is only trying to get you to agree this now because he has been told you can get more. The notes he has shown you can say whatever he asked the solicitor to say.