Prenuptial Agreements: The Good, The Bad, and The Ugly

 Posted on September 09, 2020 in Family Law

Discussing finances might be just about the least romantic part of any prospective marriage. It is certainly not ideal to start a marriage planning for what happens in the event of divorce. However, it is an unfortunate reality for many couples, with some statistics showing over fifty percent (50%) of marriages end in divorce. Many divorces are caused by disagreements over finances. However, being able to communication maturely about financial issues and your concerns is actually a very responsible way to start a new marriage.

There are many reasons couples seek prenuptial agreements, among them are the following:

1. One party owns a business, real estate, or other asset they wish to protect as separate property;
2. One or both parties have been divorced or have children from other relationships and want to make sure those children are taken care of financially;
3. One party earns substantially more income than the other party;
4. One party is the beneficiary of a trust or expecting a sizeable inheritance;
5. A party’s family wants them to have a prenuptial agreement to protect family assets; or
6. The parties have heard horror stories about the cost of divorce attorneys and want to keep things amicable “just in case.”

Prenuptial agreements can address a variety of financial issues, including maintenance (formerly known as alimony), attorneys’ fees, division of assets and liabilities, and the definition of marital or nonmarital property. Many are unaware that in the State of Illinois, the way assets are titled is not the deciding factor of their classification as marital or non-marital. For example, just because you have a retirement account or pension in your sole name, even if you had it before you were married, does not mean your spouse has no claim to the asset in the event of divorce. A prenuptial agreement, however, can specify that these assets are to remain your sole property and not subject to division by the court in the event of divorce if you and your spouse so choose. However, a prenuptial agreement cannot address any child related issues including parenting time or child support. 

The most important thing to remember when discussing a prenuptial agreement, (also referred to as a prenup) with your fiancé is to communicate your feelings, but also listen and be sensitive to their feelings. It is normal for the non-requesting party to be hurt by the suggestion of a prenup. Likely, they are imagining the two of you growing old together, and the thought of separating tugs on their heart strings. However, a lasting marriage is one that is open and honest, where both parties are informed and on the same page regarding their finances. Therefore, while it may be awkward to approach and address a prenup at the onset, a marriage can actually end up stronger because of it. For example, parties with prenups are less likely to fight over spending habits, savings plans, or other financial stressors.

Further, your fiancé should recognize that prenups are extremely common in this day and age, and many people consider it the responsible thing to do. They are analogous to a life insurance or long-term disability policy - you tuck it away hoping you never need it, but if you do, you are grateful to have that protection. Just because you are being extra-cautious by planning for the worst-case scenario, does not mean that you expect divorce to occur. “Plan for the worst, hope for the best,” is a longstanding motto for many successful individuals.

Next, do not let the discussion regarding a prenuptial agreement linger. If it is your intention to have one, contact an attorney to get the process started and do so in the early stages of the engagement. By getting it done far in advance, you make it more likely your prenup will be enforceable and you can move on to focusing on the fun parts of your engagement, like planning the wedding. It’s also important that both parties have attorneys review the agreement and explain their rights and responsibilities. No one wants to rush to sign a prenup the day before their wedding! Ensuring your future spouse understands that he or she will have an attorney as well can make the process seem less overwhelming and more of a leveled playing field.

The bottom line is that it won’t be a romantic discussion and there will likely be times that you or your fiancé will feel frustrated with the situation. It’s possible that you have to approach topics that you are uncomfortable with. This is a normal part of the process and you will get through it. If having a prenup is important to you, stand your ground, but be mindful of your fiancé’s feelings. Ultimately, sacrificing your comfort level for your fiancé’s is not any way to start a marriage. 

If you need advice or help with preparing a prenup, please contact our office for further assistance.