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?

Just answering some more questions...
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.
It is his problem. I stepped back from my career to make sure DH could keep his up, and therefore have impacted my earning and therefore mortgage capacity. Therefore if I can't afford to stay here, I have to move out and he doesn't want to lose the ability to see DC midweek etc

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.
Who said they are in nursery? One is, you have no idea how old my DC are, let alone their swimming ability

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.
Where have I said I'm inflexible? Where have I said I'm not willing to compromise?

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.
The post-nup doesn't go to court. I'm not sure you understand the process?

Surely 60/40 or similar is a very normal split in the case of EOW residency? Why is this likely to get 'laughed out of court'?

This thread is getting very odd reactions.

Jsku
Thanks, definitely food for thought. I'm very much not of the opinion he would do the right thing by his children. Seeing the solicitors note has opened my eyes to how the starting point of any solicitor is 'fuck the kids education, let's see how much money we can save you'. And as I've said, he is exactly the sort who would get whipped up into a fight.

So you think I ought to take out the 3 year review clause?
He is from Ireland, so not a huge flight risk, and I know where all the assets are and how they are structured, as that's my professional background so have helped out in that respect and it's not an aspect that worries me.

Re everyone else who says the post-nup will get invalidated when he backtracks and gets out a lawyer...
He can't. That's the whole point of these...

The only way either of us can overturn it is to prove that it was made without us being in full receipt of the facts. So he would have to prove I duped him, hid assets, lied etc. He can't just rip it up because he decides he can get a better deal by fighting me in court

Hence me wanting to get it right now!

@saywhatwhatnow
Am I happy, not particularly
In the last few years, I had a stillborn son; DH's sibling was killed in horrific circumstances; the pandemic has challenged us in many ways; I've had an incredibly difficult time at work;
Any of those would challenge the strongest of people, and it doesn't take a genius to tell our marriage has suffered. But my marriage is not what is making me unhappy, it just isn't as supportive and good as it should or could be
But it doesn't mean it is over, it doesn't mean I should throw in the towel, despite all the armchair psychologists deciding for me from my posts

I totally get where your therapist is coming from, it makes sense to me. You are understandably very worried that in the event of divorce, your DH would behave in a way that would be detrimental to your children. You are struggling to get past this. By making the promise that the won't behave in this way, via a post-nup, you are able to move on and see if the relationship is salvageable.

I can't really comment on whether the financial split is reasonable, and the anti-affair clause sounds like it would be difficult in practice. But the overall concept of the post-nup makes sense.

On a side note, I think it is disgraceful that men (and women) are actively encouraged to screw over their children in the event of divorce. In your shoes, I'd want to see my DH recognise how awful it is.

I've just seen your update. I'm so sorry for the loss of your son.

Postnuptial agreements aren't legally binding in the UK. You need better advice because your husband sounds like he'll fight tooth and nail without a thought for you or the kids. And yes, it would be a judge that decided whether they were going to take it into account fully or not.

You sounded inflexible because you are unwilling to move even a small distance away from where you are now despite it being less disruptive to the children than removing their pets.

You say you are a high earner, it will be difficult to prove and argue you need more than 60/40 split. So as I said, you'd probably be better in my opinion just going with that than trying for the 70 🤷🏽‍♀️ especially if you've any hope of saving the marriage.

I don't know the ages of your kids but your talk of nursery and swimming lessons suggested very young primary age and toddler age groups. Their "lifestyle" will be fine.

@cheeseismydownfall

I've just burst into tears reading your post. Yes, it is exactly that. You've said it so much more articulately than I did
I'm terrified for their future and just want to know it is secure, and then I can relax. With the uncertainty, I'm a constant ball of anxiety that can't think straight.

DH has acknowledged that he was totally unprepared for how combative the solicitor was from the off
The notes show a few times he says things like 'I just want to do the right thing for DC' and she replies 'the courts can be persuaded to accept a private education is her choice and therefore not your responsibility after a split' - directly ignoring what he was telling her he wanted to do

He has also acknowledged that he is the sort of person who would start off voluntarily paying additional maintenance, but could see how a new partner could come along and start moaning about how much he was paying his ex, and that he would have his head turned into paying as little as he could get away with, to free up money to spend on his new relationship

But I know that saying this to me in a moment of calm wouldn't stop him still doing it in a moment of anger in years to come.

Hence wanting it legally enforceable

@catcuriosity

Jsku Thanks, definitely food for thought. I'm very much not of the opinion he would do the right thing by his children. Seeing the solicitors note has opened my eyes to how the starting point of any solicitor is 'fuck the kids education, let's see how much money we can save you'. And as I've said, he is exactly the sort who would get whipped up into a fight.

So you think I ought to take out the 3 year review clause?
He is from Ireland, so not a huge flight risk, and I know where all the assets are and how they are structured, as that's my professional background so have helped out in that respect and it's not an aspect that worries me.

Re everyone else who says the post-nup will get invalidated when he backtracks and gets out a lawyer...
He can't. That's the whole point of these...

The only way either of us can overturn it is to prove that it was made without us being in full receipt of the facts. So he would have to prove I duped him, hid assets, lied etc. He can't just rip it up because he decides he can get a better deal by fighting me in court

Hence me wanting to get it right now!

@saywhatwhatnow
Am I happy, not particularly
In the last few years, I had a stillborn son; DH's sibling was killed in horrific circumstances; the pandemic has challenged us in many ways; I've had an incredibly difficult time at work;
Any of those would challenge the strongest of people, and it doesn't take a genius to tell our marriage has suffered. But my marriage is not what is making me unhappy, it just isn't as supportive and good as it should or could be
But it doesn't mean it is over, it doesn't mean I should throw in the towel, despite all the armchair psychologists deciding for me from my posts

Absolutely work at your marriage. I'm all for it. Do everything you can to strengthen it. I think a post nup makes me feel sad for the trust in your marriage, but really on reflection who am I to say that's not the right thing for your marriage? It doesn't sit right with me but then again I'm not you!

Have you had 1 2 1 therapy for yourself?

@GoodbyeH

Yes, I've had individual therapy, although I'm not currently as my therapist is taking a sabbatical, and I can't find anyone with capacity for new clients at the moment.
The couples therapist we see has seen me for individual sessions from time to time when she can see things are getting too much for me.

DH has also had individual therapy, but focussed more on the grief of losing his sibling. But also on childhood trust issues, so it all helps

@davidsSchitt

They are binding in so far as the court needs a good reason to disregard them
The good reason needs to show it can't be upheld in good faith, not just that one party has changed their mind.

We have been (jointly) well advised on this, and the post-nup can't be finalised without us both individually accepting legal advice on the full implications of the document. That document confirms we both understand the binding nature of the document, to avoid a 'oh I thought this was just advisory' argument should it ever come to court.

OP I'm aware of what you are describing, what I am saying is noone here has ever heard of it (and the MN audience here is very wide) and whether it is indeed enforceable. Solicitors will sell you a dream and leave you with a nightmare.

OK a quick Google says that whilst solicitors will draw them up, they are not enforceable in England and Wales, so whilst you have an agreement now, a divorce can easily turn nasty quickly when money is concerned and that paperwork will be worthless but guess it would be a good starting point at mediation for the financial order.

Yes, what you've described means it's not legally binding. And that it would be a court that would decide should your husbands solicitor choose to argue that circumstances have changed for either of you, that it wasn't his idea but that it was made under the duress of a marriage counsellor and he felt he had no option....and on and on it goes.

My point is that it's not legally binding. You pushing a man who prioritises money over everything else for more at this point will stick in his mind. He will see it as justification to fight against it in the future, should you ever divorce.

Rather than the post-nup could you focus on prioritising your career rather than letting him progress in his to your detriment?

I am concerned that you keep refuting this post nup to everyone who is saying its not enforceable. If it's the same people writing this agreement that is telling you that this is exactly what will happen in the event of divorce, you are being very naive and seems to be the money is what is what you are focusing on in therapy instead of the elephant in the room.

I think the post nur is fine and a good idea.
I think the therapist who suggested it would agree the infidelity clause is unhelpful.
If 60/40 is what you need, why would you need a different amount if he cheated? I think the only thing in would incentivise, in the event of a split, is you trying to prove he was unfaithful and him desperately trying to prove he wasn’t.

@davidsSchitt

That's not what we've been advised.
We've spoken to 2 family barristers who don't have a financial incentive to push us towards them, we've spoken to a couple of solicitors who are selling us the services. Not tinpot practices - serious family law specialists
They all say the same thing - a properly prepared post-nup is pretty water tight. The individual legal advice sessions are specifically to avoid the situation you have described, and to ensure no one can say they didn't understand or appreciate what they are signing.
We also have to submit a full disclosure of assets to avoid that being used in the future.

A post-nup done without those steps is going to stand a higher chance of being overturned, as is one that is grossly unfair to one party.

One that is properly drafted, advised and executed is as good as legally binding, unless something comes to light afterwards.

But if you seem to know more than the various family law specialists we've spoken about this, I can only bow down to your superior knowledge

This article explains it better than me theprenups.co.uk/archive-13.html

@combatbarbie

It is semantics. I do understand the limitations of it and I understand how it would work in practice.

The legal definition of 'enforceable' means there is no discretion
A post-nup, like a prenup, is officially advisory, in so far as the judge has no legal obligation to enforce the contents
The judge is able to disregard it, but in practice, that will only happen in a limited set of circumstances

A respondent coming to court and saying they've changed their mind and want to tear it up is not going to work
If they come to court and said they only agreed because they thought the petitioner would be destitute without the 60/40 split and now it turns out they secretly owned a second house, they judge will listen

I'm also so sorry about your loss OP

OK I give up. Your denial that your husband will just hand over what you've agreed now to pacify you is staggering. He could, like has been said by another poster, say he was coerced into it by you when in relationship therapy, that gives him a huge advantage on any settlement as it could be seen as abusive behaviour.

When it comes to the crunch he may well ask for 50/50 care of DC as that seems to be more preferable with the courts now, not EOW.

Like I said before, stop concentrating on the monetary value and address the elephant in the room or else your marriage may as well end now.

@youvegottenminuteslynn

Thank you

Ok, I'll bow out now as I'm trying to help you see that this could work out negatively for you and avoid that but you're just being rude now.

Have a little think about your statement here,

"They all say the same thing - a properly prepared post-nup is pretty water tight."

Think about them insisting on the you taking the full services they offer with regards to financial agreements.

That is what they do. That is their whole business. "Pretty water tight" is just another sales pitch. The actual fact is that it is not legally binding. Find a solicitor that isn't trying to sell their services - they don't have to be "tin pot practices" to be well versed in their sales techniques.

Another fact is that your husband is admittedly up for a fight when it comes to money and so is his solicitor.

Sitting someone in front of a solicitor to sign a financial agreement on the advice of a marriage counsellor would easily be argued to have been made under duress. It doesn't get less arguable the more solicitors appointments they have. In fact, that could show they were just desperate to do anything the counsellor advised 🤷🏽‍♀️.

Op solicitors are, in my experience, very keen to get a divorce to be combative as it makes it more likely they’ll earn more. They deliberately try and cause divisions.

It’s not fair to blame your H for them trying this

Or to blame him for seeking legal advice. Women on here are told to do exactly that

Op, a can think of a number of friends who would have positively encouraged their wives to have affairs if it meant they could keep 65% of the equity!

@catcuriosity "The post-nup doesn't go to court. I'm not sure you understand the process?"

Even if you don't apply to court for them to decide the split of assets your agreement i.e. the consent order will still need to be agreed/signed off by them.

During the period between exH and I separating and applying for divorce exH advanced me a cash lump sum which he borrowed off his mother. When we did our Form Es/submitted the consent order the lump sum wasn't immediately obvious so it looked like the division of our house equity was unfair against me and the courts refused to agree it. We had to provide further evidence before the judge would sign it off.