Prenuptial Agreements – Pros and Cons

PRENUPTIAL AGREEMENTS – PROS AND CONS

By now, if you’ve seen any of our posts, you know we’re big fans of Prenuptial Agreements.  Yes, yes, yes…we’ve heard all the reasons why clients forego these documents, and we’ll go over those below.  But, our experience in divorce litigation, our knowledge of existing case law, and our understanding of the emotions that go into a divorce case, act as the foundation for why we still encourage people to consider a prenuptial agreement prior to saying, “I Do.”

THE MOST COMMON REASONS WHY PEOPLE DON’T GET PRENUPS: OUR TAKE

  • They are the opposite of romantic.

Ok, I totally concede this point.  Here you are: blissfully in love and newly engaged.  You’re asking your friends and family to be in your wedding party, and you’re planning the perfect party to celebrate what you believe will be a life-long commitment.  Not really the time to throw in a total
“buzz kill” conversation starter of, “hey honey… do you want to get a prenup?”

Most people we deal with, the ones who do follow through with getting prenups, are those who had a conversation about prenups before they got engaged.  Obviously, this is the most ideal.  Certainly part of a courtship should be discussing important things that could affect whether you want to marry someone, like having children, career goals, expectations of a future spouse.  Whether you would both want a prenup should also be one of these topics to explore before there is a ring involved.

But, for many, this is a conversation they want to have, but don’t know how to approach it.  So, they don’t and just cross their fingers it won’t ever come back to bite them in the butt.  In light of current divorce statistics, we know that nearly half of these people end up regretting not having that prenup.

  • Planning a prenup is “planning the divorce before the wedding.”

Frankly, I hate hearing this one.  No one who has ever sat with me to discuss a prenup is there because they think they are going to get divorced someday.  To that end, I’ve never had anyone sit in my office for a divorce consult and say, “oh yeah, I knew we’d get divorced before we even got married.”

Obviously, if at least one person was that convinced the marriage would fail, the wedding wouldn’t be on the books in the first place.  Prenups are just documents that kick into play if a divorce or legal separation were to ever take place.  If all goes to plan, the couple will remain married for the rest of their lives.  But, if things don’t go to plan, a prenup will drastically cut litigation fees in the future.

  • My partner will think I’m not committed if I ask for a prenup.

Once again, this concern comes up most when the discussion of a prenup is happening only after there is a proposal of marriage.  Ideally, you start these discussions before the ring.  But, even if you don’t, having an honest conversation as to how a prenup benefits both parties in the event of a divorce should alleviate any feelings of mistrust between a couple.  Remember: prenups are not how movies portray them… as these documents used by rich spouses who want to use them for unilateral advantage.  A fair prenup is balanced and equitable for both parties, which generally happens since the couple is negotiating the document when they are happy. This is starkly different from when a couple is divorcing, and they usually have malicious or ill feelings for one another.

WHY PRENUPS ARE SO USEFUL: OUR ADVICE

  • In the event of a divorce, a prenuptial agreement eliminates battles over assets and finances.

I really can’t stress this advantage enough.  Despite the fact that lawyers, like myself, earn a living by representing clients going through a divorce, all lawyers can agree that divorce is expensive.  Even “uncontested” divorces can be costly, and the Courts are only making things more complicated in recent years, resulting in more cost for litigants. Specifically, going through the financial “discovery process” in a divorce is long, frustrating, and expensive.  Couples spend thousands of dollars in most cases just identifying their assets and income.  Then, the fees greatly increase once you have to start litigating a property and debt division. 

If a prenup is done properly, the couple outlines in advance how all their property and debt will be divided in the event of a divorce.  It identifies how property acquired before and after a marriage is divided, and who will be responsible for debts.

While public policy does not allow couples to negotiate issues surrounding children, such as custody or child support, having a prenup will streamline some of the most expensive issues of a divorce case.  So, while you may not be able to avoid the divorce court process entirely, having a well-drafted prenup drastically reduces your costs down the road.

  • Personal and business assets accumulated before your marriage are protected.

Many people are waiting longer to get married, especially with the “millennial generation” graduating college and starting families.   In the last decade, there has been a shift among youth to be more financially stable prior to getting hitched.  What this means is that more often than not, people have accumulated some wealth and/or assets (savings, homes, retirement accounts, investments) prior to getting engaged. 

On top of first-time marriages being later, we have a large generation of 40-55 year olds who are entering second marriages, usually after going through difficult divorces.  Prenups identify and help preserve assets that accumulated prior to a marriage.

  • Prenups preserve a spouse’s ability to protect children from prior relationships.

Speaking of second marriages, a prenup allows a party to not only identify property that existed prior to the marriage, but it can also spell out what assets that spouse can leave for children of prior relationships in the event of death.  Most prenups indicate what property is considered that spouse’s “separate property” and also what the couple has agreed to leave one another in their respective wills.  This prevents one party to the prenup from challenging the other party’s will as a surviving spouse in probate court.  Additionally, it makes the couple talk about these issues in advance of the wedding.  Ask yourself, if your intended spouse wasn’t agreeable to how you wanted to leave property to your other children, wouldn’t you want to know before the marriage?

  • Prenuptial Agreements preserve family ties and inheritance.

Since any well-drafted prenuptial agreement identifies a party’s non-marital property, also known as “separate property,” the document can help preserve a party’s interest in previously-inherited property and/or expected future inheritance.  While Illinois’ divorce laws do consider inherited property to be non-marital already, the issue we’re often litigating is whether the inherited property was intended for just 1 spouse, or left by the grantor as a gift to the couple.   Another issue we’re often battling is whether inheritance was “comingled” with other assets and thus was converted into marital property.  A prenup staves off these issues well in advance.

  • Discussing a Prenup forces a couple to put financial expectation on the table before the wedding.

Many people still think that talking about financial expectations is taboo.  No one wants to ask: “hey honey, what would we do with our stuff if we ever divorced?”  But, so many people who have been through a divorce have confirmed that they wish they’d had more honest conversations with their spouse about financial issues before the wedding. 

Many people assume when they get married that, if the worst happened, they’ll peacefully divide their household items, keep their own retirement, and pay their own bills after a divorce.  For most, this is unfortunately a fantasy.  Once divorce is actually on the table, emotions run high, attorneys are involved, and you don’t like each other anymore.  To complicate this, each spouse has family or friends in their ear giving bad advice.  Without a prenuptial agreement, you could be watching your assets be divided beyond what you expected, your home could be sold, and some of your retirement accounts and/or pension benefits could be transferred to your spouse.  It’s sometimes a shocking reality for litigants who expected an amicable “parting of the ways” in the event of a divorce.  So, doing the prenup eliminates all of those unknowns so that you can actually have more peace of mind during your marriage, leaving more time to enjoy one another.

Deciding whether to have a prenuptial agreement is an important choice when considering a marriage.  We are always happy to meet with clients to explain whether a prenuptial agreement is appropriate for your situation.  Contact us today to start the discussion.

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