Marriage as an institution appeals differently to different generations. On today’s show, Sandra Napoli-D’Arco and Beermann Divorce and Family Law Attorneys Leonidas L. Bezaniss II and Dominic G. Erbacci tackle Millenials and marriage. Getting into the legalities of marriage, they enumerate reasons why Millennials opt to postpone marriage. They also look at the prenup, highlighting it as a major reason for such postponement. Learn everything you need and want to know about prenuptial agreements, economic awareness, and a little bit about divorce.
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Millennials And Marriage
Our CMO, Sandra Napoli-D’Arco, asks questions that get the attorneys talking about everything they know and have experienced throughout their years of being divorce lawyers.
I’m here with Leo Bezanis and Dominic Erbacci. We’re talking about Millennials and marriage, everything that Millennials need and want to know. There’s a lot of information out there on Millennials and then postponing marriage. We will talk about that and some of the things that they can put in place to give them peace of mind. We’re going to have Leo and Dominic tell us a little bit about themselves.
Leo: I’m Leo Bezanis. I grew up in Hinsdale. I went to the state local after that for school. I went to the University of Illinois, Chicago for undergrad and the University of Illinois Chicago John Marshall Law School. I’ve been practicing for a couple of years.
Dominic: My name is Dominick Erbacci. I grew up on the north side of Chicago in Roscoe Village. I’m a third-generation attorney. I went to DePaul for undergrad and also attended the University of Illinois, John Marshall Law School.
As divorce lawyers and Millennials yourselves, and for anyone who doesn’t know, they are those that are born in the 1980s and the 1990s, why do you think Millennials are postponing marriage?
Dominic: I think that Millennials are postponing marriage for a couple of reasons. Millennials, in general, are more thoughtful about their wives and their future, not only as individuals but also as couples. They’re waiting. They’re not getting married as young as our parents’ generation got married. They’re finishing undergrad. They’re considering going to law school and they’re finishing law school or graduate school, then they’re getting married. It’s more thoughtfully done. They like staying at home a little bit more or longer than our parents’ generation. They’re eager to start their lives. It’s also harder to get out on your own. The prices of homes have gone up considerably. A mortgage is harder to qualify for. There’s a number of reasons why Millennials are postponing marriage.
Leo: To build off of that a little bit, Dominic had mentioned school. The cost of school has gone up astronomically. I know even since my parents went to school too when I went to school. A lot of Millennials who like myself, I chose to finish school before I even thought about getting engaged. I am engaged and I’ll use it as a pivot point. From a personal standpoint, I knew there was no way I could start a life with somebody not only my life to have the palm of my hands but also to help provide for somebody else when I have an astronomical amount of debt and that debt. When you look at it, like Dominic said, we’re a little more thoughtful because had I gotten married before I went and got that debt, which a lot of people do.
A lot of people our age will think, “I want to go build something for myself. The old school mentality before I go back to school and do whatever I’m going to do.” By doing what I did, rather than signing a prenup, perhaps we can get into a little bit later. I protected my spouse from at least a certain extent from what could be a marital debt, had I incurred that while I was married. That could be something that down the line if things fall apart, we would both be on the hook for. That’s not necessarily saying if we choose to refinance to buy a house and lock the student loan in it or even consolidate. That could arguably become marital, which pivots nicely into talking about prenups for people our age.Fear of marriage is one thing why Millennials won’t settle down. Click To Tweet
Dominic: That’s a great point. I think that with regard to the prenuptial agreements, it’s a good idea for Millennials to consider prenuptial agreements whether or not they have a state of any kind. To address your point specifically Leo, student loans are massive. We’re talking about hundreds of thousands of dollars in debt. That can be non-marital debt if you would incur the debt prior to marriage. If you incurred the debt after marriage, it’s considered the marital debt. Moreover, if you refi using SoFi or those similar lending institutions, you can transmute what was formally a non-marital debt into a marital debt. I think prenups to your point can address that.
Leo: That’s part of the reason Millennials aren’t holding off on marriage. They’re afraid. It’s scary. All the media likes to say is how high the divorce rate is. You hear the word prenup on TV or movies, it’s like, “Prenup? They don’t love you if you want a prenup.” At least from one side of the perspective, and I know there’s definitely a counter-argument to be made. A prenup in this day and age, lots of people our age are coming out of school or their respective trade with a lot of debt and looking down the barrel of a lot of debt. Dominic said the prices of houses are a lot higher than they used to be.
By going into a prenup, especially if you’re the debt holder and saying, “I know you’re protected to a certain extent. By this having been incurred before I was married, but if we need to do something because mortgages are harder to consolidate or refi, whatever that might be, you might be on the hook for this if things go south for whatever reason. I want to protect you from that.” I think there’s a lot to be said about coming from the right corner of a prenup and saying, “I love you. I care for you and I want to make sure you’re protected. I want to make sure we’re both protected down the line.” That has a lot to say about caring for someone coming from that corner.
You’re talking about it as the person asking for the prenup does not have a lot of wealth. They have more debt.
Leo: I think that’s commonly in our generation. Unless you’re coming from a generation of wealth or you’re a smart individual, you get into something like scholarships. There is a large percentage of people my age and Dominic’s age that are coming out at this stage of life on a debt.
If I’m entering into a marriage and I’m not the one that has the debt and my husband to be, is not as thoughtful or maybe not as aware of what could happen down the line. Would you suggest that other person initiate the prenup?
Dominic: It’s definitely going to be fact-specific. As I stated before, you’re going to have to take into consideration when that death has occurred. If it has occurred before the marriage, it’s going to retain its non-marital characteristic and only the party who incurred the debt will have to repay that unless they refinance it during the marriage. If you are considering marrying somebody that has a substantial amount of debt, it may be advisable to go ahead and enter into a prenuptial agreement. You can reserve the right to maintenance. You can reserve everything and focus on what’s going to happen to that debt if we refinance it down the road. To Leo’s point, you need to refinance your student loans, qualify for a mortgage. To requalify or refinance your home at a lower rate, you could address that in your prenuptial agreement. Say no matter what happens, if we change this characteristic from what would typically be considered non-marital to marital, it’s going to retain its non-marital quality and you are going to have to repay that loan as an individual.
Leo: To build off of that a little bit on specifically the point of coming from the perspective of someone who doesn’t have the debt. I think the way to approach it, Dominic addressed it, you want to say, “I’m not trying to stop you from having anything I don’t have.” We dispelled that connotation about prenups and negativity because even the statute itself is drafted in the negatives.
That’s a good point because most people in the outside world think prenups, “You’re going to ask for a prenup.” Are they going to move over with that marriage?
Leo: It’s a good segue. For example, I have a lot of student loans. I’m not afraid to say that for the sake of this example. My fiancé does not. Her as the non-debt bearing party could come to me and say, “I know your loans are premarital, but I think we need to protect ourselves.” That’s not to say that I don’t want to draft it. We can reserve the issue of maintenance and say we would use our incomes at the time of fact-specific. We would both be entitled to anything incurred during the marriage. There’s a way to draft it to where it’s positive. There are lots of positives in there and the only negative per se is protecting each other from a large loan that you incurred before the marriage. Because the big thing where I see that transmutation or the non-marital property turning into marital property is having to refi, having to consolidate.
Somehow changing the nature of the loan to where it’s arguable. God forbid things to happen that make things negative down the road where you could argue, “This is marital.” That’s the last thing I think people our age should have to deal with, which ties into the fear of marriage. The media has done wonders on portraying the negative side of marriage and our generation is afraid. They shouldn’t be because you can put these vehicles in place to protect yourselves from the huge expense of getting divorced. The huge expense of litigating every single issue. Even people not our age are afraid. You put those vehicles in motion years ahead of time, you are saving yourself the costs of litigation for years down the road.
Dominic: Interestingly, you’re talking about the media’s portrayal of marriage and productional agreements in general. Before I drafted my first prenuptial agreement, I shared with my wife that I was doing nothing specific about the clients. In general, I was drafting this prenuptial agreement. She insisted I sit down and she played for me a Sex and the City episode where one of the characters looks at her soon to be husband and says, “I’ll sign this, but I’m worth $1 million.” That’s what most people think about when they hear the prenuptial agreement. It’s somebody with wealth forcing it down their throat. They have to sign it.
It’s up to them to say, “No, if we get divorced, I want X amount of dollars.” That’s not the case. Millennials typically don’t have the same amount of wealth that other generations have had going into marriage. Having said that, there are lots of positives that you can bring to the table going into marriage by drafting a prenuptial agreement. It’s more than drafting debt. To your point Leo, you can get ahead of a lot of issues with the dissolution of marriage such as maintenance, the allocation of the marital estate prior to getting married in such a way that when we do dissolve your marriage should you ever, you’re not going to incur the same amount of cost. Dissolutions of marriage are inherently expensive.
Prenuptial agreements can get out in front of that by having you reached an agreement as to the allocation of debt, student loans included as well as many other issues while you’re still getting a wall. When you are in a dissolution of marriage, should you ever be in that position, you’re not going to be butting heads. The document, which is a contract that you’ve agreed to while you were still relatively pleased with one another is going to control. You’re not going to dissipate the marital estate through expensive attorney’s fees. You’re going to move on with your lives in a way that was already addressed prior to getting married.One of the key factors in the enforceability of a prenup is a fair and reasonable disclosure of the other party's assets. Click To Tweet
Had there been situations where prenups have been unenforceable?
Leo: Dom said something and I want to flip the coin a little bit. I said there was another side of the coin and there is. We’ve said lots of positives about prenups for Millennials and how that can help potentially strengthen the bond and protect your marriage moving forward. One of the key factors in the enforceability of a prenup is a fair and reasonable disclosure of the other party’s assets. We’re talking about the person who like Dom said, you’ve got someone with a lot of money who’s typically, “You need to sign this to protect my assets. Myself and my wealth.” There’s a case in Lake County, Illinois. They’re a couple together for years. They never got married. Broke up on and off and there was a prenup that floated around that husband who had said, “I will marry you, but you need to sign this.”
For years they were together and never signed. Finally, one day he comes to the wife who is waiting years to get married and says, “Let’s go to Vegas. Let’s get married.” They go to Vegas, she’s in her dress. She’s on the altar, puts the prenup on her lap. She signed it. She was in tears, but she waited her whole life to get married. The only disclosures that he made would be the addresses of businesses that he had. She had no way of knowing if he was in a positive or negative other than what she knew about him based on that document. In Illinois, it doesn’t have to be full disclosure of assets, just fair and reasonable. In Illinois, they hold a strict level of scrutiny, meaning the way they read it and the disclosures made and each party’s understanding when they go to enforceability. Not too long after he wants to get divorced.
They go to court. This goes to trial. One argument duress is immediately dispelled because there’s a lot of case law and statutory that says no. This is a hypothetical I’ve heard throughout law school and the bar. Unless he’s holding some weapon or holding you hostage at the altar. If he hands it to you at the altar, you have a chance to walk away. Unfortunately, that’s how the law, at least in Illinois and in this case went. As far as the fair disclosure, the judge said, “I see that he disclosed, I think this is fair and reasonable.” Unfortunately for her, the case was lost. The point being is that fair disclosure is important and it’s positive. They have the prenups, but you also want to make sure you’re not signing it. You want to make sure you got everyone sitting down and saying, “What do we have? Let’s make sure this is early put together to save ourselves down the line.”
You wonder, “What happened. Why couldn’t you have asked maybe even the night before? All the guests are there. Everyone’s watching,” it breaks my heart.
Dominic: Illinois adopted the Uniform Premarital Agreement Act, which has been adopted by a number of states. It’s difficult to invalidate a prenuptial agreement, as long as the criteria are met. Not only does the agreement itself have to be unconscionable at the time it was entered into, not unconscionable at the time of enforcement, but there would have to be a combination of unconscionability and a failure to disclose or a failure to obtain the other party signature acknowledging their waiver of the disclosure. That’s a little bit more nuanced than what happened in this case. Prenuptial agreements will typically be enforced and it’s quite difficult to have the entire document itself ruled unenforceable by a court.
What advice do you have for Millennials reading this as they come to see Dominic or Leo and say, “I read your blog and I’m thinking of getting married and would like to have a prenup.”? What provisions should be in a prenup, what should be included, what should not be included may be from both sides?
Dominic: It’s a contract and you’re contracting. It’s a little bit different than the typical arms-length contract because there is an intimate relationship between the two parties’ contracting. It’s always going to be important that both parties retain competent counsel and you have to talk to that council and tell them what your goals of the prenup are. Your attorney should listen to you, what goals you want to accomplish and how that ties into a happy long-term marriage. In terms of what a prenuptial agreement has to say, it’s going to be dependent upon the parties getting married and what assets they want to protect or what debts they want to protect. In terms of an actual agreement being held enforceable, there’s the offer of consideration and acceptance. I’ll always get disclosure.
Leo: It’s important to say that everything’s fact-specific. One thing we could say to Millennials is we’re here trying to dispel negativity about marriage and prenups in our generation because we see a lot of people waiting. Don’t be afraid. If both parties want to sit down and talk about a prenup, don’t be afraid to contact me, Dominic or the firm. Anyone here can sit down and draft it the way you want it. You want it drafted, there’s a lot of positives you can put in a prenup. A lot of things that you can address to protect each other from debts that one or the other may have, to also allocate certain assets to one or the other should things go awry. Hopefully, they don’t. That’s not the goal of the prenup. The prenup is protecting one another. What I would tell the Millennials is don’t be afraid if it’s done the right way. You’ve got the right help, and if you speak up as to what you want in there, it can be possible.
Any last few words you’d like to share with Millennials? What are your thoughts on prenups? Are you getting a prenup?
Leo: That’s up to my fiancé. She knows I’ve made these disclosures about my debt. She knows everything about me. She knows she doesn’t have that. I do have some student loans and that’s completely her decision. I’m in a position where I understand how it works and I’ve explained to her how it works and she’s going to read this and maybe she’ll know a little bit more than she did before. If she wanted to go that route, 100% I’d be open to exploring it with her. I want to protect someone that I care about and I see it as a way of protecting someone I care about.
Dominic: We did not sign a prenup. We’ve talked a lot about the positive of prenups for protecting debt or protecting the other party. If you’re the party with assets, absolutely get a prenup there. There are lots of benefits that come out of a prenuptial agreement. The Uniform Premarital Agreement Act, part of the reason it was adopted by Illinois to promote marital harmony. It’s not to promote the solution of marriage. It’s a very positive thing. If you have assets and debts, please consult an attorney. Leo and I are readily available to consult with you in any manner possible. We have experienced drafting prenuptial agreements and we’re going to answer any questions you might have.
They don’t get a prenup. There were always postnups. Thank you for reading. If you liked this episode, please subscribe to the channel and follow us on Facebook, LinkedIn, and Twitter.
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About Leonidas > Bezanis II
Leonidas L. Bezanis II focuses his practice in Family Law Litigation. Leonidas earned his law degree from The John Marshall Law School in Chicago, Illinois, where he was admitted with a scholarship for his academic achievements. Prior to his admission to the Illinois Bar, Leonidas spent numerous semesters clerking for the Felony Trial Division of the Cook County State’s Attorney’s Office, utilizing his 711 License to assist in the litigation of a myriad of criminal cases.
Following his experience with the State, Leonidas served as a Judicial Extern to Cook County Circuit Judge James N. O’Hara. Leonidas’s duties included assisting with the management of a courtroom portfolio of more than 1400 cases as well as authoring draft opinions, legal memoranda and statements of issues regarding Illinois state tort claims.
About Dominick G. Erbacci
Dominic G. Erbacci is committed to providing his clients with a superior experience throughout the span of litigation, mediation, or the collaborative method. By concentrating his practice in all areas of family law and divorce, Mr. Erbacci knows what it takes to ensure clients are equipped with the tools they need to succeed both during and after the legal process.
As a third generation attorney practicing law in the Chicago-land area, Mr. Erbacci was taught the significance of preparedness, hard work, and ethical conduct from an early age. These values are at the core of how Mr. Erbacci approaches cases and works with clients to resolve their legal issues.
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