I DO…Want a Prenup!

Premarital (Prenuptial) Agreements (and postnuptial agreements) have become much more common among the middle-class in recent years. Contrary to popular belief, premarital agreements are not just for the celebrities and athletes. There has been a recent trend in modernizing the concept of premarital agreements. Planning for the potential division of accumulated assets and income, as well as debt, adds clarity to the marriage and a couple’s respective goals and expectations. An oft overlooked bonus to obtaining a premarital agreement is the clarity gained from a difficult conversation, including an enhanced level of maturity to discuss tough topics. The conversation itself encourages and requires open, frank, and honest communication about taboo topics, like money, sex and childrearing. Misunderstanding and lack of communication about these issues can often lead to divorce. This author’s personal and professional theory is that a premarital agreement may, in fact, enhance the likelihood of a marriage surviving the long haul. And who doesn’t want that?

A premarital agreement is not a curse, nor is it a sign of distrust. Consider it an insurance policy. Would you buy a beautiful new home without property insurance? What about driving a sparkling new Mercedes with no insurance? No one wants or anticipates house fires or auto accidents, but stuff happens. Premarital agreements also have nothing to do with love. It is a business transaction – pure and simple. So, is a premarital (or postnuptial agreement) right for you? There is no simple answer but here are some common motivations for obtaining a premarital agreement:

Plan, Protect, Provide!

Plan for future and changing income needs and circumstances; ie: if one has a child, decides to stay home, becomes limited with employment opportunities;
Protect non-marital assets such as an inheritance, pre-existing divorce obligations, and an individually or family owned business;
Provide efficient division of marital property, including the marital residence and respective plans for possession and sale of same;

**Last but not least, it saves you the potential cost of litigation and attorney’s fees in the future.

What Prenups/Postnups Can and Cannot do:

CAN	CANNOT
Determine length and duration of maintenance (spousal support) or waiver of same	Determine child support
Direct sale or allocation of marital residence or other real estate	Decide allocation of parental responsibilities and parenting time
Determine ownership and division of personal property	Appoint a guardian for children
Make provisions for respective health insurance expenses	Dictate behavior (parenting issues, for example)
Allocate debts	Waive or modify child support and child related expenses
Make provisions in the event of death –Estate Planning
Create a “Sunset Clause” – partial or full
Determine to handle a family business/business operations
Define separate and joint property
Preserve prior obligations such as prior maintenance award/pension
Determine method of bill payments and joint obligations
Tax filings and status
Waiver of each other’s pre-existing debts
Allocation of future marital debts
Dispute Resolution procedures
Attorney’s fees and costs
Determine jurisdiction

**What about cheating? Immoral behavior? Can I negotiate based on my spouse remaining faithful? This issue has not yet been decided by an Illinois court. Aside from obvious proof and definition problems (ie: how to define cheating, how to prove certain conduct), it may be in Illinois’ future to entertain the enforceability such a provision.

The most important aspect in negotiating a premarital agreement is making sure it is likely to be enforced in a court of law. Not all premarital agreements are well drafted, and key financial disclosures must be made in order for a premarital agreement to be considered legally valid. In Illinois, an attorney will help one ensure that the agreement is fair and not unconscionable. Illinois follows the Uniform Premarital Agreement Act, which provides for minimum disclosure of financial information, for example. Both spouse should have his or her own attorney so as to avoid any future argument of overreaching or duress. Additionally, a premarital agreement should be fully executed well in advance of the wedding – at least a month.

As always, an attorney will be an immense help in guiding the process and navigating the court system.

Content provided by Women Belong member Jenny Jeltes