Commonly held misconceptions about the purpose and benefits of prenuptial agreements have made them an awkward topic of conversation among couples contemplating marital bliss. The true problem, in fact, has been the way most people think about the reasons for which a prenuptial agreement might be created, apart from the eventuality of divorce or death.
What if one were to re-frame the prenuptial agreement as preventive of divorce? In other words, a prenuptial agreement should not merely be a plan in case of divorce or death, but rather a plan for your marriage. Statistically speaking, it is true that roughly 50% of marriages end in divorce. Yet, when we dig a bit deeper, we naturally ask ourselves why such an enormous percentage of marriages end in turmoil and bitterness. What we discover is that disagreements over, and secrets about, financial matters account for a significant portion of marital failures. Such matters—questions about income streams, debt, properties owned, art, stocks, and the like—might have been resolved from the start, through the simplicity of a prenuptial agreement, thereby eliminating (or, at the very least, mitigating) one of the major causes of divorce.
While the mere suggestion of entering a prenuptial agreement necessarily evokes a lack of trust, and often panic in the financially disadvantaged party, these agreements provide a practical and concise way to express future desires between spouses, and maybe more importantly, educate them on not only the existing streams of income and assets, but as to how the law would treat them in the event of a marriage and what certainties can be achieved via the prenuptial agreement. To this end, prenuptial agreements enable both parties enter marriage with peace of mind: the financially advantaged party is able to protect his or her assets and income streams, and the less affluent spouse may learn, ahead of time, how he or she will be provided for throughout the marriage, as well as upon death or divorce.
Prenuptial agreements do not take a “one-size-fits-all-approach.” Under Illinois law, these agreements can be drafted to include a broad variety of concepts, including, but not limited to: individual rights and obligations pertaining to property; protection against entanglement in future debt; the elimination or modification of future spousal support (alimony); and choice of law considerations (where divorce proceedings will take place and what state’s laws will apply regardless of where the parties then reside).
People who have children from a previous relationship should also consider a prenuptial agreement. Certainly, children from previous relationships deserve as much protection as a parent can possibly provide when entering into a new marriage. The prenuptial agreement can accomplish this by assuring that certain assets, such as retirement accounts, life insurance policies and other assets, be left to the children, rather than to the new spouse, who might otherwise inherit these in the event of the parent’s death.
We like to believe that every party entering a marriage has the best intentions, but the future is never guaranteed. A prenuptial agreement ensures that asset, and sometimes income, protections are in place in the event the marriage goes awry. By reframing the misconceptions of the prenuptial agreement, intended spouses can foster a conversation about one another’s hopes, dreams, and values.
I have extensive experience negotiating and drafting premarital agreements for traditional and same-sex couples and understand the delicate nature of these negotiations. I am available to help you understand the process of entering into a prenuptial agreement, and will protect your interests, without disrupting your relationship. Please contact our firm if you have questions regarding this matter.
This post was written by Thomas Field: Family Law Partner