Interview with a Divorce Lawyer

a conversation with Aaron Thomas, the Prenup Guy

When I first wrote about how important a postnuptial agreement can be if you take a step back in your career due to caregiving, I shared that I was collaborating with Eve Rodsky and the Fair Play Policy Institute as well as Aaron Thomas, author of The Prenup Prescription, to bring you The Fair Play Guide to Prenups and Postnups. I’m thrilled that this free guide is now available. It outlines why you might want a prenup or postnup as a way to codify the value of your caregiving work. Because as discussed with Eve in our conversation How to Fair Play Your Divorce, the court system has no way to value that work.

You can download the guide here.

Today, I’m sharing an interview with Aaron of all the questions we couldn’t squeeze into that guide.

This seems an appropriate time to dig into these details.

Kimberly Harrington

just published an essay about the gender flip of alimony, and how shocked she was when she learned she would have to pay it upon divorce. It is, as she says, “what the ex-wife discourse misses completely.”

When you're the one paying alimony

And I agree. While the Fair Play guide is focused on spousal support (or alimony) being guaranteed if you sacrificed your career, if you are a woman who is the higher earner in your family AND doing all the unpaid labor (which is happening more and more), you can write in a stipulation taking alimony off the table. The whole point of a postnup is you put the decision making power in your hands, instead of ceding it to the courts. You decide, while you still love and respect your partner, what might happen upon a split. Aaron explains that these documents do not signal you are planning for divorce but are instead insurance against a costly, lengthy divorce. Just like car insurance, you hope you’ll never need it. But upon a crash, you are mighty glad you have it.

Aaron is not just the author of The Prenup Prescription but a three time winner of Atlanta’s Best Divorce Attorney. You can follow him on Instagram here or visit his website here. Read on for why every marriage should have such a partnership agreement, how we’ve reframed spousal support, which outdated divorce laws will shock you, and why no-fault divorce is so important.

What do you advise if one partner wants a postnup, and the other won’t agree to it? In the same vein, what happens when one spouse wants to amend the prenup and the other doesn’t?

I think the same way that marriage is a long-term (and we hope, lifelong) negotiation, so should be the discussion of the financial relationship. There is no other aspect of our marriages that are “set it and forget it.” This is why I cringe when I hear people say to get a prenup and then put it in a drawer and never look at it again. A prenup or postnup should be a living document. What worked when you were 25 may not work at 35, or 45. Couples should revisit their finances at least annually, and also upon any major life change like the birth of a child, job loss or gain, retirement, changing of a residence. And while your partner may not be willing to amend the postnup at a certain point and time, that doesn’t mean that the conversation about your financial life is over for life. The same way that you would revisit any other aspect of your relationship that needs work, you can - and should - revisit a prenup or postnup to ensure the agreement is still working for both spouses.

What is the average cost?

The average cost of a prenup/postnup ranges from $2,500 to $5,000 depending on geographic location and the complexity of the situation. It can certainly cost much more for high asset and complex agreements, but most couples will fall in this range.

In The Prenup Prescription, you talk about the importance of factoring in unpaid labor and the career hit one spouse takes when children come into the picture. To those who ask to take alimony off the table in a prenup:

“I explain that if one spouse were to leave the workforce due to childcare, they would lose earnings and otherwise stall their career in general. Should a couple in that situation get divorced, and the primary caregiving parent re-enter the workforce, at best they would be out of date in their field of expertise. At worst, their knowledge base would be obsolete. In either case, their earning power inevitably would be nowhere near the level it had been, nor anywhere near that of their continuously employed peers. They would have lost years of salary, raises, bonuses, and more. And, as is always the case with children, their expenses would have gone up and up and up. Given all that, I tell them, wouldn’t it only be fair to give the primary caregiver parent a financial transition period - via alimony - post-divorce?”

This is such important framing. As you know, I tend to think of alimony as payback of a loan. You don’t get paid for all your unpaid labor during a marriage, but upon a divorce, that loan is now due. Therefore alimony. However, I have had several women reach out to me who did not step back in their careers and were the primary breadwinner BUT ALSO the one who took care of all the childcare and household maintenance. We have seen in report after report that despite women earning more, they still take on so much of the mental load. What can we do for them in a prenup or postnup, to avoid them having to pay spousal support to an ex that did NOT take a step back in their career and did not take on more of the household labor, but because they make less, are still entitled to spousal support?

This is why the conversation about the financial contract that is marriage deserves so much discussion. The laws tend to be one-size-fits-all, and I fundamentally believe that couples should know - and come to a meeting of the minds about - what they are signing up for when they enter into marriage. Even the states’ laws disagree about what the purpose of alimony is. In some states, courts consider maintaining the same standard of living as was enjoyed by the couple during marriage (hence the terminology in some jurisdictions “spousal maintenance”). In some states judges tend to view alimony as “rehabilitative” meaning it’s just meant to bridge the gap between the time a spouse is financially dependent on their ex-spouse and the time they can replace that income. You can see how judges working from these different definitions may arrive at very different alimony calculations just based on this alone. In an ideal world, by identifying each spouse’s expectations early in marriage about each spouse’s roles in childcare, household maintenance, and all other forms of unpaid labor, we can help couples avoid ending up in situations where they carry the responsibilities of breadwinner, primary parent, and unpaid laborer: these relationships are unlikely to be successful regardless.

But overall, couples could benefit from being explicit about their expectations around the unpaid labor in the household so that they are creating prenups and postnups that address alimony based on the actual contributions each spouse plans to make to their household, and avoid spouses who contribute neither finances nor unpaid labor to benefit in divorce.

I'm a words person and sometimes notice subtle (or not so subtle) misogyny in the literal terminology in divorce. One term I don't like is spousal support. It makes it sound like the one paying is supporting you, when again, as I’ve previously argued, they are paying you money you earned. In addition, another way to think about alimony is that they are paying you a portion of their wages because they would not be earning said wages without the support you provided over the years. I have a friend going through a divorce who put her ex through medical school, both filling out his applications, and working while he was making no money. By the time he had completed his degree and residency and was finally earning a solid income, they were divorcing. So now he is making a huge salary, but there are no assets to split while they get divorced. She should receive a portion of his wages which HE WOULD NOT BE EARNING WITHOUT HER SUPPORT! So that is not spousal support, that is spousal dividends or something. Help me figure out how we could reframe this!

I’ll be honest, I’m of two minds about this. First, I agree with you that the way alimony has historically been framed makes people averse to the concept: “Why should I pay money when we’re no longer together.” At the same time, the phrase that is currently written into laws across the country is “spousal support,” so I’m hesitant to use a more accurate phrase and then cause confusion when couples see the statutory word written into their agreements. I’m also biased as I’m in the middle of a decades long mission to reclaim the word “prenup” from the negative stigma that has plagued it for a generation!

Maybe we can combine the two ideas and say that spousal support is compensation for a spouse that supported you?? It truly is repayment: you pay spousal support when your spouse supported you!

Along with this issue is how we sometimes talk about settlements aka "she received a $2M settlement." When we use this kind of terminology, it again makes it seem like the receiver of assets is getting something that isn't his or hers despite it being how "their" assets are split and/or how the courts feel like assets should be split. Is this just me, or could we be utilizing different terminology that isn't so steeps in outdated belief systems (aka an ex-wife "takes" her ex-husband's money)?

Whenever my clients would invariably complain “What do you mean she wants half of my 401k” or “What do you mean he wants half of the equity in my house” that it wasn’t your 401k, it was y’all’s 401k. The house you split always belonged to the both of you under the rules of marriage. The possessive phrasing indicates a failure to understand the nature of the contract you “signed” when you got married.

This outdated terminology you reference is a big reason why so many divorcing couples (over half, in my experience) are shocked to find out how asset division works. When we get explicit about defining mine, yours, and ours, it changes the mindset about dividing what’s “ours” in divorce, but also how couples treat their assets during the marriage itself. Breadwinners need to understand that those earnings and 401(k)s are part of a joint pool of assets, and just as importantly, spouses who provide the unpaid labor should feel empowered to insist on access and information about the assets that belong just as much to them as they do to the spouse whose name is on the paycheck.

While you talk about the importance of prenups and postnups, and they are important, besides being insurance for a messy and costly divorce, you also recommend putting in a statute that requires a state of the financial union every year. I can’t tell you how many of my Divorce Diaries have included financial infidelity or spouses taking credit cards out in their spouse’s name that their spouses don’t know about, or racking up debt unawares, or not paying taxes. What should a couple do if, during one of those financial state of the unions, something is discovered and what should spouses do to ensure their spouse isn’t hiding something? Do you recommend running a credit check yearly?

According to a Couples and Money study done by Fidelity, the lack of transparency in household finances is at an epidemic level:

• 40% of American married couples don’t even know how much their spouse makes.

• Only 54% of couples say they make financial decisions jointly.

• 44% of couples argue about money at least occasionally. 1 in 5 couples say money is their biggest relationship challenge. That rises to 1 in 4 for Millennials.

• 1 in 4 couples say they are frustrated at their partner’s money habits but let it go to keep the peace.

So you ask if couples should be running regular credit checks? Yes - that is a fantastic idea! First, Congress thought it was important that individuals know the information on their credit report - so important that they passed the Fair Credit Reporting Act requiring the credit bureaus to provide us with a free credit report every year. It’s a smart idea even if you’re single.

And if you are married, your financial lives are inextricably intertwined - to a degree that your spouse’s credit report might as well be your credit report. You file joint taxes literally as one entity. Creditors look at you as one financial bucket. You apply for a mortgage as a unit. Your partner’s credit report has huge implications for your own life. I’ve seen hundreds of spouses who had to pay for their partner’s financial misdeeds, often with devastating impact, all due to a lack of transparency around the finances in their household. Sharing credit reports regularly has the potential to save untold numbers of preventable financial catastrophes.

What is one aspect of a prenup or postnup that you think most people overlook but is extremely beneficial?

To your earlier question - the financial disclosures required for the agreement to be enforceable. For many couples, even those that consider themselves to be an open book to their spouses, going through the process of preparing a prenuptial or postnuptial agreement is the first time that they get a transparent look at their partner’s finances. Just this one act of transparency alone starts conversations that couples are otherwise unable to have, even after years of dating.

One of your arguments for a prenup is that it can regulate how a couple interacts financially in their marriage. Can you talk more about that?

At its most basic level, prenups force couples to define what’s mine, yours and ours. And if you agree that certain assets fall into the “ours” bucket, then it’s a very natural conclusion that both spouses should have 1) information about those assets (bank statements, retirement account statements, access to the financial advisor), and 2) access to those assets (both spouses have equal right to spend the money that is in the joint accounts, rather than only the spouse whose name is on the paycheck).

I recall representing a client who had kept his earnings separate and secret from his wife, didn’t share the balances of his 401k with his wife, and spent their entire marriage living a higher standard of living than his wife - actions which ultimately contributed to the downfall of their relationship. During the divorce he realized that all of those assets were joint property all along. And in a moment of all too rare clarity commented to me “If I’d known that everything would be split eventually anyway, I could have just shared everything while we were married.” What a tragedy.

And this is just in your basic bread and butter prenup. Couples can certainly go further and explicitly outline their expectations around how money will flow in their relationship in their prenup - the prenup process becomes the opportunity to join their finances in an intentional way that will promote a healthy relationship based on transparency and fairness.

Georgia still has a law that states that a spouse who commits infidelity isn’t eligible to receive alimony, which is a throwback to a time when marriage was more of an explicit exchange of the woman’s body for the man’s financial support.

In your book, you mention that to get divorced in Georgia, “the couple must report the date their separation began, which state law defines as ‘the last time the couple had marital relations.’” There are some states where they require a six-month or year separation before you can file. And if you choose to date during that time, it can be considered infidelity and impact your ability to get spousal support. Is there anything you have found during your years as a divorce lawyer that you are shocked is still a law?

The law that immediately comes to mind is North Carolina’s Alienation of Affection law that allows a spouse to sue a third party for interfering with the marital relationship. The idea is that it protects the sanctity of marriage. It’s primarily used to sue one spouse’s lover, but it could apply to anyone, like an in-law or friend - who interferes in the marriage and causes the breakup. I’ve seen cases where it ends up being used as pressure (some would argue legal blackmail) against a spouse who cheated to fold on issues of custody or equitable division in order to get someone to drop the suit against their lover. It’s not hard to imagine how a particularly litigious individual could misuse this kind of statute by filing lawsuits, with real monetary damages requested, against their spouse’s family members or friends. There are several examples of judgments over $1 million being awarded, including one case where the judge ordered a $30 million judgment against a man who slept with another man’s wife.

Georgia (where I practice) still has a law that states that a spouse who commits infidelity isn’t eligible to receive alimony, which is a throwback to a time when marriage was more of an explicit exchange of the woman’s body for the man’s financial support. If the woman breaks her side of the contract, i.e., exclusive use of her body, then the man’s obligations for financial support are likewise rendered null and void.

If couples keep their finances separate during a marriage, do they still have to split things upon divorce if they do not have a prenup?

Yes! This may be the least known but most consequential fact about marriage law. Keeping your finances in separate bank accounts doesn’t mean your finances are separate in the eyes of the law. There may be very valid reasons for some couples to keep their finances separate during marriage, but unless the couples explicitly contracts for that in a prenup or postnup, the courts are not going to honor your informal arrangement.

Which states split marital assets 50/50?

There are 9 community property states where marital property (income earned, assets and debts acquired during the marriage) are divided 50/50: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin.

What are your thoughts about the discussion of getting rid of no-fault divorce?

My response to this question could be a book, but I’ll just say that this is a horrible idea. Equitable division states, where state laws say that judges can consider virtually anything either spouse did over the course of the marriage when deciding how to divvy up the marital estate, create a scenario where mud-slinging is incentivized. We need less incentive for mud-slinging and the exposure of people’s personal lives in public courtrooms, not more.

Also, I fundamentally disagree with the idea that a judge - a third party stranger to the couple - should have the authority to deny their ability to break up and move on with their lives unless in their subjective opinion, one spouse has behaved badly enough that the other spouse should be permitted to separate from them.

When you consider that prior to no-fault divorce, a wife who was being abused by her husband was required to prove in court, over a court case that would often last a year or more, that her husband was being abusive, while often being forced (financially or otherwise) to live under the same roof as her abuser… it is morally reprehensible to advocate going back to that type of system.

What is one thing you wish more people knew about the divorce process?

That so much of what causes these public, devastating, expensive courtroom battles is avoidable when couples spend more time on the front end of their relationship coming to an agreement as to what categories of assets and income are considered marital property, and having a gameplan for how to compensate a spouse who sacrifices a career during the relationship. This agreement is called a prenup, and it’s my mission to empower couples to move beyond the stigma and do what could be the most loving act spouses can do for one another in service of their relationship.

These decisions are infinitely easier to make when a couple is madly in love and planning their life together than when trust and communication have broken down and negative emotions abound.

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