When married people can no longer live together, the typical reaction is to get a divorce. The problem with divorce is that it can create a whole set of new problems. Only a judge can dissolve a marriage.A judge can dissolve a marriage only in the context of a lawsuit. Once a lawsuit is filed, it can get out of control.
In a typical divorce case, one spouse files a lawsuit and then the other spouse files a counter lawsuit. At that point, the lawsuit won’t go away unless both spouses agree to dismiss the case. Unless that happens, the lawsuit is now in the control of the judge. Because Missouri judges operate under time standards and otherwise want to control their dockets, they want to “move” their cases.
But "move” them where you ask? Towards trial. Because the lawyers and parties are moved towards a trial, they are compelled to get ready for a trial. Certainly, all of this can motivate the two sides to reach agreements and settle the case. But along the way, all of this also leads to things getting said and done that leave life-long scars. For example, interrogatories get propounded. Interrogatories are written questions sent by one spouse to the other which have to be answered under oath. One typical interrogatory asks a spouse to give all the reasons she has for believing that the other spouse is an unfit parent. Another typical interrogatory asks a spouse to disclose all of her allegations of marital misconduct - for example, all of her allegations that the other spouse has been unfaithful. Once these interrogatories have been put out there and possibly into the public record, it is impossible to take them back. The case might be subsequently dismissed or settled without a trial. But the damage has been done. If there are children, then there are things now in the public records that those children can find and read - for generations to come.
Many of us in the legal profession divide lawyers into two classes in our thinking:litigators and transactional lawyers. Litigators get cases ready for trial and they try them. I like to think of litigators as demolition specialists because they tear things up. Transactional lawyers, on the other hand, are like architects and contractors. They build things and solve the problems that come up along the way. To overstate it a little: Litigators find or make problems; transactional lawyers try to solve them or avoid creating them.
When two married people can’t live together any longer, the question is how to go forward in life without tearing things up too much. One thing to consider is that they don’t actually have to file a suit, get a divorce, and tear things up. It is perfectly possible to go forward with a post-nuptial agreement and perhaps a trust.
A post-nuptial agreement is just like a prenuptial agreement except that the parties enter into it after marriage. In one usual prenuptial scenario, the prenuptial is entered into as a hedge against divorce and is entered into in contemplation of the parties’ getting married. In a second scenario, often going along with the first, the prenuptial is entered into in contemplation of death. The parties may each have children by former marriages, and they may enter into a prenuptial agreement to protect the inheritance rights of these children.
Although we see a lot more prenuptial agreements than post-nuptial agreements, a post-nuptial can accomplish all of the same things as a prenuptial. And there is no rule which says that the parties to a post-nuptial have to live together as man and wife. It is perfectly fine for them to live apart. A post-nuptial in such a case can provide for property divisions, child support, maintenance and inheritance (in tandem perhaps with trusts). A post-nuptial is a binding contract, and just as a judge can dissolve a marriage, a judge can enforce the contract.
Obviously, if married folks are contemplating remarriage, then they will have to face court and go through the divorce process. But if married folks can’t live with each other anymore but don’t foresee remarriage (such as those who've married for 30 years or more), then a post-nuptial agreement along with estate planning may be the route to take. This route can avoid at least some of the acrimony that often accompanies a divorce. It avoids creating a history of that acrimony that haunts people, their children and their grandchildren for years to come. And it likely avoids the expense that accompanies a divorce where each side is lawyered up with an attorney whose mentality may be to break things rather than fix them.