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?

@combatbarbie

I am aware of the differences between a properly and improperly executed post-nup
We have both had the full process explained to us, and the pitfalls highlighted
We've been told how a decent solicitor protects against those pitfalls

It is very naive to think you can wriggle out of any legal agreement by pretending years later that you didn't understand what you were signing, even when you had signed something to say you had taken independent legal advice to explain what you are signing

On top of that, DH's job means that no judge is going to believe him claiming he was duped into signing something he doesn't understand

That isn't the point. I know an enforceable post-nup can be achieved. I didn't start this post to debate that.

I merely wanted opinions on the content of it, and whether it is fair, because I think my opinions had become a bit clouded after months of this

I know full well he wouldn't want 50/50 custody. He job wouldn't facilitate it, for starters, and he flat out wouldn't want it. Nor would DC want to be at his house with a babysitter while he worked late, when they could be with me

Not really sure what you mean by the elephant in the room though?

"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."

Correct.

OP, I think you will get more focused responses by posting in Legal Matters regarding whether or not the post-nup is fair. Understandably, you will get more relationship advice on this board, even if that isn't what you have asked for.

I only read your op because I didn't want it to bias my opinion.
On balance it seems like an ok split. My only concern is the max of 25% of his salary going on costs associated with childcare.

I know you said it would be split 60% to him but I think the cap could be reached quite easily for childcare and school costs but I suppose that depends on how high his income is and what school your children go to.

I know it's not what you asked but having a clause where you get more if he cheats kinda indicates to me that the breakdown is very severe and unlikely to be mended.

You have the right idea to negotiate this now while on friendly terms but is it actually legally binding?

@davidsSchitt

I could see your point if I had only been to see solicitors I was planning to engage

But I've spoken informally to 2 family barristers, one a friend of a friend and one a family member, and both have told me the same thing.
Post-nups are rare, but no judge is going to take a decision to overturn it lightly - make sure it is watertight and it will standup

I have no reason to doubt that. I fully believe they are rare, I fully believe the people using them will be a certain subset of client for a lot of these solicitors, and I'm sure a judge is more than savvy enough than to have the wool pulled over their eyes by someone suddenly claiming duress, when they've specifically signed something to say they've been advised, and are agreeing to it in full receipt of the facts.
Judges aren't stupid...

"It is very naive to think you can wriggle out of any legal agreement by pretending years later that you didn't understand what you were signing"

It's naive to think a solicitor would tell you anything other than that they will give you THE best service there is. Yet they haven't explained the process well enough for you to know it will go through a court and that it isn't legally binding. That should be a great big red flag.

Also, why would he need to pretend he didn't know what it was? He can admit he knew what he was signing. The marriage counsellor suggesting it is a gem for his solicitor though. Talk about piling the pressure on.

I hope you get a good outcome and nobody here can tell you what is fair financially for your circumstances, I'd urge you to really consider the motivations of anyone you pay to advise, possibly get your own aggressive solicitor to match his?

OP it seems a bit of a contradiction that on the one hand you're saying you've both had the full process explained to you and the pitfalls highlighted by various legal people, but on the other hand you're asking a bunch of lay people on MN as to whether your DH's proposal sounds fair.

If a court can't make that judgement without full disclosure of finances than we have no hope. Of course you can still ask for our opinions out of curiosity but it's a bit unfair to take umbrage and tell us we don't know what we're talking about when the replies don't go your way.

(FWIW from what I see of other settlements the one your DH is proposing doesn't sound too unreasonable to me).

It sounds like a fair agreement.

Are you happy with it? If so I'd go for that.

I don't get the infidelity premium. Surely the financials are the same regardless of whether one person cheats or the marriage simply can't be saved?

@catcuriosity one thing that you might like to consider adding to the postnup agreement is that you will use a qualified mediator in the event of any disagreement over finances if you split. Mediators tend to be less confrontational than solicitors and MUCH cheaper than going to court.

Other things to include might be getting wills, life insurance and critical cover (if you don’t already have them in place) so that you have peace of mind if the worst happens.

Personally, I think you are being sensible by doing this. I really hope things improve in your marriage.

@MyCatHatesEverybody

I don't think it is a contradiction?

We've been asked to come up with what we both consider a fair settlement.
Fair to me means what maintains my DCs life as much as possible. Fair to DH means not punitive compared to what he would get if we went full legal route spending £0000s on solicitors.
That's one part of it.

The other part of it has been speaking to lawyers to understand the process of getting the post-nup signed and sealed.
This doesn't include advice on the contents of the agreement at this stage

When we are at point that we both think we have something that is fair, we will separately see solicitors. They will advise on what we could get in a best case/worst case scenario and we have to confirm we understand we are 'signing rights away' as it were, by agreeing to something potentially less favourable

50/50 would not be an 'average' settlement, from what I understand, particularly as it is usually the woman who has taken the hit work wise during the child-rearing years, and would have been nearer to his salary, but for the children. 70% in your favour would not be unusual. Don't listen to people saying you should accept 50/50. It's almost like some people don't believe women should get fair treatment. If you need to, employ a SHL. Money well spent IMO.

I would add something from my sisters divorce.
She was earning £125k, him £400k.+
He refused to pay for private education saying he didn't go to private school so no reason for them to.

The judge basically backed him saying to my sister that private education is a privilege, not a right.

So I think paying towards their education is the single most important part of the post nup, the housing aspect in many ways less so as a court is potentially more likely to side with you on housing than schooling.

The elephant in the room is the problems that you took you to the counsellor. Rebuild your marriage and stop focusing on this post nup, get one sign it, whatever... Then move on with what's actually important I. E. Your family future.

And for what it's worth ANYONE can be coerced, ANYONE can be emotionally and financially or physically abused, his job has nothing to do with it. And yes ANYONE can tell a judge that yes he took legal advise but he felt pressured into signing his assets away.

Financial penalty for infidelity?? Jesus , why would anybody marry if this is the process you need to go through to get out of it.

[quote catcuriosity]@MyCatHatesEverybody

I don't think it is a contradiction?

We've been asked to come up with what we both consider a fair settlement.
Fair to me means what maintains my DCs life as much as possible. Fair to DH means not punitive compared to what he would get if we went full legal route spending £0000s on solicitors.
That's one part of it.

The other part of it has been speaking to lawyers to understand the process of getting the post-nup signed and sealed.
This doesn't include advice on the contents of the agreement at this stage

When we are at point that we both think we have something that is fair, we will separately see solicitors. They will advise on what we could get in a best case/worst case scenario and we have to confirm we understand we are 'signing rights away' as it were, by agreeing to something potentially less favourable[/quote]
As you are so intolerant of most people on here I fail to see why you came here to MN firstly but more importantly why you have not taken that further step you mention - advice on the contents of the agreement at this stage . You say you want it to be "fair " so take advice based on that factor. You seem to have a pretty low impression of your husband's character.

@mummytolittledragons

Financial penalty for infidelity?? Jesus , why would anybody marry if this is the process you need to go through to get out of it.

I would just go for a divorce now op. It seems like a huge amount of work just to try to Make your marriage work, is it worth all this misery ?

The settlement sounds quite reasonable. Am I right you will get some maintenance on top as the children will be mainly be living with you? Would you consider putting some equity money away in a separate account as a pot to pay the school fees? You could top it up every month. Judging from another thread these fees often become an issue later if partners (especially father) have more children or loose their jobs. So sorry to hear about the loss of your child OP.

@Wherearemymarbles

I would add something from my sisters divorce. She was earning £125k, him £400k.+ He refused to pay for private education saying he didn't go to private school so no reason for them to.

The judge basically backed him saying to my sister that private education is a privilege, not a right.

So I think paying towards their education is the single most important part of the post nup, the housing aspect in many ways less so as a court is potentially more likely to side with you on housing than schooling.

Absolutely this. A judge will not order private school fees to be paid, so consider this aspect carefully.

Post nuptial agreements aren't as watertight as you think OP. A court will give it weight when dividing the assets but can still override it if a party argues that it is unfair or will result in a party not having their needs met.

And a higher settlement of divorce is on the grounds of adultery isn't as useful as you seem to think. Not many people use adultery as the ground for divorce because it has a specific meaning (PIV sex) and you basically have to walk in on them in the act to prove it. Most people use unreasonable behaviour as the ground when a spouse has been unfaithful because of this.

You’ve asked of it was fair, no, I don’t think it is. It’s totally skewed to you and on the basis that your DH will continue to earn this wage and it being higher than yours.

You seem so blinded by your need to protect yourself financially and to disincentivize your DH from having an affair or leaving that you can’t see that you are effectively destroying your marriage in the process of creating this ridiculous document.

If this is the only way you feel safe or want to continue then you may as well divorce now. Your DH would be mad to agree to this farce.

@catcuriosity

It is not possible to say what is fair without looking at the total picture and what assets you are splitting, and what the actual family situation is.

Starting with your assumption on asset/equity split. The numbers you are quoting or assuming are just numbers. And someone else’s split isn’t applicable.
The way the courts look at it is based on hoisting needs. Both yours and your H’s needs are deemed the same - and it doesn’t depend on where kids spend more time. Both parents places need to be able to house the kids adequately. So - if the equity+joint assets allow for purchase of two similar properties - then the judge would just split it all 50/50.
The reason why some of your friends got more than 50% is more likely to allow them to adequately house themselves because their mortgage access is most likely less than their ExH’s.
So - really hard to say if 60/40 is fair. If it gets you a place to live in the area you want to be in - possibly not a bad deal.

Next - children’s maintenance. In your place I’d not try to put a number on it specifically, as your kids are small and things would change and it’ll be very easy to dispute and change it all later. For eg - nanny expenses will be high now - but would reduce as kids grow up, etc.
So if you feel you need some agreement to feel better - I’d try to agree principles, not actual amounts.
So - I’d get him to agree to pay for private education.
I’d also get him to agree to pay X% of child expenses. But here the issue will be how you and him will be able to define what an acceptable level of expenses would be.

For example - when I was going through that - I have very carefully calculated all the kids expenses for the Form E. My exH tossed it out saying it’s all inflated and unnecessary, if actual.
So - at this point - I’d protect yourself and not sign on an actual number - more a principle of how kids expenses are shared in the future.
And possibly add something about how you’d agree on how reasonable expenses would be defined - i’d definitely try to put in some mention of status quo at the time of divorce. Just so he doesn’t start questioning whether swimming classes are necessary, etc.

But in general - OP - I do think that what you are trying to do at this point is a waste of time and money. And it would only cause you angst. And, more importantly won’t give you the protection you seek.

In the end of the day - if and when you divorce - your deal will be decided at the time of the actual divorce.
But you are in a fortunate place where you are in a good financial situation and your kids will have a good life.
Your H’s solicitor told him what she though he wanted to hear - and that is that she’ll fight for his money. And that is what a solicitor would do for him eventually.
And for you too.

"I know an enforceable post-nup can be achieved"

It can't though. That is an impossibility currently.

Whether your post-nup is upheld as part of your consent order or financial settlement is entirely up to the judge on the day. The judge has no legal obligation to uphold it. They may do as financial intentions were made clear before things got nasty in a divorce, however they also may not if they believe it to be disproportionately unfair. I’m surprised your solicitor hasn’t clearly explained this to you.

@SpongeBobJudgeyPants

50/50 would not be an 'average' settlement, from what I understand, particularly as it is usually the woman who has taken the hit work wise during the child-rearing years, and would have been nearer to his salary, but for the children. 70% in your favour would not be unusual. Don't listen to people saying you should accept 50/50. It's almost like some people don't believe women should get fair treatment. If you need to, employ a SHL. Money well spent IMO.

where do you 'understand' this from?

I am intrigued (as a divorce lawyer)