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?

There is always one! In RL. I cannot, or will not go online and look at statistics in such a thing, if they actually exist. Not my divorce. Many people I have know haven't had 50/50. Are you going to argue that I am lying too? Maybe you are lying about being a divorce lawyer. Tis the internet, we could both be lying liars

"In RL. I cannot, or will not go online and look at statistics in such a thing, if they actually exist"

So you plucked a figure out of thin air and "advised" the OP that she'd be likely to get a 70/30 split in her favour then?

She is already not being given the full facts from her solicitors and family friends, I don't think anecdotes from your mates will help!

Spongy - my sister got around 53% and if you saw my previous post you can see the disparity in income.

When I divorced I got 50% and my XH earned 4 times my salary. I got some spousal maintenance for a while but the these days that is unlikely. So if you both have sufficient resource and earning ability you do not need to be awarded extra to provide a home for the children. The judge would not take into account your wish to remain in an expensive area, maintain a certain lifestyle or send children to private school, these are not necessary. I am very sure that as soon as your ‘D’H takes any post nuptial paperwork to a lawyer that gives you more than 50% the lawyer will tell him not to sign it as it is not a good deal. The lawyer would point out that his circumstances may change, he may meet someone else and have another family, fall ill, retire etc etc, you may get a better job, meet a new partner etc why on earth would he be agreeing to continue giving you 25% of his bonus every year? All your efforts are focused on getting him to sign a legally binding contract which is in your best interests but not his and a lawyer will point that out. You are in effect going through a Princess of mediation so why not put something in writing that you would use in mediation or negotiation if you get to that stage. The whole point is that you can pressurise him but not his lawyer. If he is advised that 50:50 is right in your case then sticks to that he’s making a reasonable decision and then you need to consider if it’s worth the fees to challenge it. Tbh I also think any decent lawyer would tell him that your marriage has already broken down and he should get out before he accumulates any more assets.

You're basically incetivising a bad man to fight you for custody of the children.

This "plan" sounds like you negotiating with yourself to avoid the vicious divorce you seem to intuit is coming.

As the old saying goes, "when you're going through hell, keep going." I would bite the bullet and get it over with as the sooner you start, the sooner it will be done.

OP I have read the full thread and admit to not being well versed in divorce matters but there are two things that stand out to me here:

1. There is obviously some muddy waters over the extent to which the post-nup is legally binding. My interpretation - which may or may not be correct - is that if you make a post-nup that you are both currently happy with, and then further down the line you end up divorcing, then the terms of the post-nup would go ahead ASSUMING that neither party decided to contest them. This is a big assumption. It assumes that your husband would maintain the same set of priorities that he currently has, which he might not, especially if he had met someone else. For whatever reason, your divorce may not end up being amicable and in anger he may choose to contest the post-nup, and/or a solicitor may advise him to contest the post-nup. Other posters have already outlined the potential weaknesses, and you have spoken about how they have to be 'water-tight' but it sounds like if he paid enough for a good enough solicitor then he could get out of whatever arrangements he had agreed to. The post-nup being the suggestion of a marriage counsellor seems to be one potential loop hole that an expensive lawyer could latch onto. I don't think there needs to be any implication that your DH is stupid or incapable of understanding what he was signing for a lawyer to argue that the agreement was made under duress. Also don't assume that your husband would make the seemingly logical choice to give you slightly more money in order to save money on expensive lawyers in the long run - divorces can get very nasty and he may be willing to spend multi-thousands in order to spite you and prevent you from getting what you feel is deserved/expected based on the post-nup. If he has a lot of money at his disposal then he may be quite happy to piss a load of it away in order to 'buy' his way out of the agreement, to make sure you are unhappy. In short, it seems like the certainty of this post-nup being enforceable in the future is based on both of you still wanting those terms of divorce when the time came. That may be true now, but perhaps not later.

1. Related to point 1. - you may think 'he would never be like this' and might assume that he would always put his DCs first. But one thing you haven't taken into account is the possibility that he might meet someone else and want to have more children with them. It sounds like your own DC are still quite young and so you still have a number of years of school fees/holidays etc ahead of you. In a few short years he might have twins with 'little miss new boobs' (Friends reference if you don't watch ) which may give him sufficient motivation to contest the post-nup, to give his younger kids the same lifestyle as the older ones. So even if you have no doubts about his 'family-man' morals - which is doubtful anyway given that you are wanting an infidelity clause, implying that 'what is best for the children' may not ALWAYS be at the forefront of his mind - then he still may want to give you less money in the future to be able to support a new family too.

So overall, I wouldn't bother with the post-nup - stop obsessing over financial security (which is impossible to provide anyway - you may lose your jobs, or become critically unwell, or have whatever else life throws at you that means you have to move away and take DC out of school etc) and focus on relationship security. This is all just a big distraction.

If you both put as much effort into your marriage as you do to proposing future possible divorce terms your marriage may work.

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

For this reason you should be going for higher equity and less ongoing. Especially with a review period which would allow him to turn the tables 3/6 years down the line.

He was already swayed in one meeting and you’ve not even split up. There’s not a chance he’s going to stick to an agreement long term with outside influences.

Have you checked how legally binding the court agreement for maintenance would be? Because most can be overturned by CMS/CSA one year and one day after they are issued. So you can end up having to go back to court every year or so to have the higher earner figures taken into account.

Post and pre-nups hold no water at all. My exh is just in the middle of a divorce from his wife after me (who he married twice, fun times). He is excessively wealthy and stands to lose quite a lot. He will make it back though and he knows that as he's in an industry where that is possible. He has three children in private school at present (our daughter also went to private school and he did continue to pay the fees when we split but that's because I didn't want half his pension/spousal maintenance/half of everything owned and just wanted to stand on my own two feet but he wanted her to continue to attend private school). NEVER make the mistake of thinking "he wouldn't do that" about renageing any financial 'decisions' you make together. They are not legally binding and though your barrister friends might be confident they had the skills to get them to stick that rests entirely on the judge on the day.

I really think your marriage is over barr the shouting and you should just go ahead and get the settlement you're after whilst your husband is compliant.

Perhaps your therapist has suggested this activity as a way of condensing the drawn out process of separation.

For your original question, as long as the children's lifestyles are maintained (as DHs would be) I think it's fair. I agree with a PP about not putting in a 3 year review as by then he may have a partner - one who does not contribute like you do and see him as a golden ticket. If they had children, I don't think that should affect your children's lifestyle. Yours were born into these circumstances and should keep them, if he chooses to marry someone with less money - then that should not impact your children.

It sounds like you have thought it through and sorry about the loss of your baby. It's a huge thing to get through but you can do it. Hopefully t he post-nip would take away the pressure/worry of a potential future divorce.

I would also take out the affair clause.

Hi OP. I honestly think a lot of the people commenting about how awful you are being are jealous, or have a lifestyle so different to your own they can’t accept the deal you are describing.

I think you a being a bit overly confident on the enforceability of a post nip, as saying a judge is unlikely to overturn a properly drawn up agreement on which both parties have received independent advice is not saying the court cannot so so, but I accept you understand the risks and I don’t think that is what this is really about.

I see that it will give you comfort to have your husband commit in writing to maintain the lifestyle you have both in good times agreed to provide for your children, and on that basis I think what you are proposing is fair. I think you should drop the infidelity clause- I can see why you want it, but inclusion undermines the principle in my previous sentence, so makes you more vulnerable I think.

I hope you’re doing ok, it all sounds very stressful.

@catcuriosity @Catcuriosity

Well, kudos OP that you both are at least trying to work on your marriage and keep your family intact. A lot of people just give up easily. Marriages can't survive with at least some forgiveness as no one is perfect. I assume he got solicitor advice when things were at a rough patch so although an unpleasant thing to find out, it can't have been a complete shock. Treat it as a wake up call that you both needed to turn the marriage around.

Now you're both working on the relationship, this sounds something you don't necessarily forget, but you forgive him for. It's not healthy for you to hang onto it.

All the best

I've been in two minds as to whether to update this, but in case this is useful for anyone in the future...

I've sought further legal advice on the binding nature of the post-nup, and spoken to another senior barrister on this.

They've given me their legal opinion, based on what they've seen in the courts in a last few years, and I'm pretty comfortable now with this being as close to legal fact as it can get.

The long and short of it is that a post-nup signed in the process that we were planning to would be as close to legally binding as it is possible to get, and there is no legal precedent that would mean he could overturn it claiming undue pressure, even if he could prove the agreement was suggested by our therapist. People have tried that before to get pre-nups overturned on the basis that they were told 'sign or no wedding' and it doesn't work
So even if he could prove I said 'sign or I'm leaving you', it would be highly unlikely to work

He explained that post-nups are relatively new and less commons than pre-nups, but the legal principle for accepting them is the same, all nuptial agreements for the purposes of discussing their acceptance and 'binding nature' in court

"It is impossible to say how many pre and post-nup supported divorces come to court each year, because by their very nature, they will be largely uncontested by both parties and presented to the judge as mutually agreed. There is no obligation to state in the application to the court that a pre or post-nup is in place, so their existence only really becomes apparent when one party contests the agreement and seeks to go in front of a judge for their financial arrangements.

Even when this is the case, it is certainly not as simple as one party saying they now reject the post-nup and booking an appointment with a judge. Both parties would first be encouraged to seek mediation and only when that process was deemed to be exhausted should a judged route be explored.

When in front of the judge, the post-nup will be considered 'persuasive' and the Supreme Court ruled them to hold 'decisive weight' unless they are considered unfair...
...The court is likely to give consideration to whether the agreement was entered into voluntarily, without undue pressure and with a full understanding of the implications.

[Would a threat of ending the marriage if the agreement wasn't signed be considered undue pressure], there is potential for someone to use this argument, but the judge would want to see a more explicit example of how this pressure was exerted than merely a suggestion of the document by a counsellor or spouse.

There are many examples of cases where a wife has sought to have a prenup agreement overturned on the basis of undue pressure, claiming the husband would have refused to go ahead with a wedding if it wasn't signed. These are rarely successful, so it is hard to see how a similar argument could be used to overturn a post-nup agreement.

The principle of fairness doesn't use a percentage split, but ensure that both parties have their needs met regarding housing and an ongoing standard of living.
[If the living situation of one person has changed a lot since the agreement was written and that was a reason for contesting it] In this area, the spirit of the post-nup would still be guiding, even if the numbers aren't upheld.
So to give an example, if the post-nup set out the intention of both parents to maintain certain aspects of the childrens' lives (proximity to a sports facility, continuation at school etc), future needs would be assessed on the basis that one party had agreed to restrict their financial claims.

There is a lot more to it, but I think these are the main points...

OP - what you are told is this -
The spirit of the post- nup will most likely be upheld.
Actual numbers determinations and asset split will be determined based on needs at the time and circumstances - income levels at the time.

So - really - don’t spend lots of time and money trying to agree on the numbers. Agree on the principles and ‘the spirit’ - on the things that are important to you.
Private schools, not relocating, sharing kids expenses in defined proportion, etc.
You can spend time arguing over the current level of expenses and needs - but unless the divorce happens in the short term - it’s pointless as numbers would change.
Also - if his earnings are lower due to pandemic - you don’t want up base actual numbers on those.

And then just get on trying to fix the actual relationship.
If you spend all your time now negotiating potential settlement if you were to divorce - there may be a lot less to save when you are done.

If you have to fight this hard to keep a marriage going , what's the point? is there any actual love there ? What's the point?

Honestly not being rude. I just don't get it. You both seem so miserable

@strawberriesontheNeva I think a lot of people see marriage as a "status symbol" or achievement - and the threat of the marriage ending brings them more anxiety than the actual state of the marriage itself. In such cases "being married" is seen a strong part of their identity - to lose the marriage is to lose oneself.

Thanks for telling us about the detail of the post nup enforceability OP. I agree with other posters that some people are just getting triggered by your high earning lifestyle and so forth.

My concern is more that you and DH actually don't have the same values going into the post nup.

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

So even if you did draw up the post nup and it was binding, then you get divorced, there are a lot of ways he could pressurise you to accept something different from what you want. He could for example threaten to leave the country and never see the DC, and you would cave because the DC welfare is top of your list, not his.

I know you are asking just about the details of the post nup, but I think it's reasonable for posters to point out that you might be steaming along under a banner of "let's work out what is fair then I will feel secure". I actually think you don't feel secure with this man, and this process won't help you feel more secure.

I'm sorry about it all, and I can see your strenuous desire to improve your marriage. And I am very sorry for your losses both you and your DH.