Congratulations on your engagement! The countdown now begins as you plan for the big day. No doubt you have thoroughly thought about the venue, the vows, the flowers, the menu and the music. You’ve also likely enjoyed exploring different destinations for an unforgettable honeymoon.
But…have you considered the crucial question of what you both will do should your marriage ultimately end in divorce? Fact: the United States has one of the highest global divorce rates, with recent studies revealing that approximately 40-50% of first marriages end in divorce, while the rates for second marriages can jump to nearly 70%.
In addition, many couples have decided to delay marriage. In 2012, the median age for women marrying was 26, and the average age for men was 28; a decade later, the median age of marriage increased to 30 for women and 32 for men.
The inescapable realities of a high divorce rate, combined with the delay of first marriages, allowing more accumulation of wealth prior to tying the knot, call for couples to reflect on whether a prenuptial agreement is right for them. Common topics addressed by these agreements include: the protection of separate property acquired prior to the marriage and the increase in the value of that property; the division of the property and debts acquired during the marriage; whether alimony/spousal maintenance will be paid, and, if so, in what amount; and the protection of inheritance rights.
Admittedly, this can be an awkward discussion, and couples often avoid steering down this path to prevent any pre-wedding disputes or unpleasant disappointments. However, difficult conversations are frequently part of marriage, and detouring away from this dialogue can short-circuit the valuable opportunity for the parties to work together—while the relationship is strong—to craft a plan that governs their respective financial and property rights should the marriage fail.
Why is this important? Realize that without such an agreement, a state court will determine how your property will be characterized and divided, as well as what financial obligations will be imposed. Such proceedings, however, can be lengthy, expensive and unpredictable, often leaving both parties unhappy with the results. The overarching benefit of negotiating a prenuptial agreement is that the control over your assets and obligations is shifted away from the court and placed into your own hands.
If you think a prenuptial agreement might be right for you, what are the next steps?
First, raise this topic as soon as possible with your fiancé. Don’t wait until the last minute in the misplaced hope that it will be easier to take care of this right before the wedding. It won’t. A prenuptial agreement is a written and detailed legal contract between you both, requiring sincere thought and careful consideration of weighty topics that will impact your lives far into the future. Accordingly, treat it with all the seriousness that it deserves: you each should consult with your own separate attorney early in the process to understand your rights and obligations under your state’s domestic relations laws and how you may be able to validly contract around certain provisions while still ensuring that your agreement will be valid and enforceable.
Next, with this information in hand, engage in open and honest discussions where you both share your views regarding the various items covered by the agreement. As no two couples are the same, no two prenuptial agreements are alike; each must be tailored to the specific facts and circumstances of your relationship and financial condition. Your attorneys can guide you through the process by posing critical questions and suggesting reasonable resolutions. Be sure to treat each other with courtesy and respect during your negotiations; remember, you are planning to be partners in life, and this agreement makes important provisions for that journey. Don’t fall into the trap of viewing each other as adversaries or enemies.
As part of the prenuptial agreement, you and your fiancé will be required to prepare a detailed report that fully and honestly discloses your financial condition, including a list of your assets, debts and any property that either of you deem “separate.” In addition, you should also consider the treatment of assets and liabilities acquired during the marriage, including the division of these items upon divorce. Thought should also be given as to whether spousal support will be paid after the divorce and, if so, whether any limits on that support will be imposed. Include, as well, any other issues that are relevant to your particular situation and upon which you’d like to achieve an agreement.
If you are marrying for a second or subsequent time, in addition to considering all of the items above, your prenuptial agreement should also address any issues that arise from obligations imposed by the prior divorce. The agreement may also govern the distribution of assets if one of the parties passes away, ensuring that his or her children get any intended inheritance.
Importantly, a prenuptial agreement cannot proactively decide issues related to the minor children that will be born during your marriage. Questions of child custody and support are exclusively reserved to the authority of the state courts, which must determine what arrangements are in the best interests of the minor children at the time of the divorce.
Prenuptial agreements are presumed to be valid and enforceable. Nevertheless, the validity of the agreement may be challenged on limited grounds.
One common challenge to enforceability is that a party alleges the agreement was signed under duress or coercion, meaning that he or she felt unduly pressured to execute the document. Such a claim can be based on allegations that threats were made to cancel the wedding in the absence of a signed prenup or that there was not enough time before the wedding to fully consider and negotiate the provisions. For these reasons, it is imperative to get the ball rolling on this process as soon as possible so that the negotiations and the signing of the agreement do not occur on the eve of the wedding. This also highlights the need for each party to have their own attorney throughout the process: having separate counsel to offer independent advice undercuts the argument that any overreaching occurred. Although these types of challenges are rarely successful, they can generate a great deal of unnecessary litigation if these safeguards are not observed.
Another basis to argue that a prenuptial agreement may be invalid is that one party failed to properly disclose his or her assets and liabilities. Hiding assets or misrepresenting their values will only lead to later claims of fraud. This underscores that complete transparency and accuracy regarding your financial condition is the best defense to any such claim.
Finally, a prenuptial agreement may be challenged on the basis that it is unconscionable at the time it is executed. Avoid draconian provisions that strip one party of assets in favor of the other or that modify or eliminate spousal support to an extent that could result in a party’s undue hardship. Again, this confirms that mutual respect is required during the negotiations and that the agreement is not to be used to punish one party if a divorce occurs.
In sum, a prenuptial agreement is a valuable tool that allows a couple to plan for the future in the event of a divorce rather than rolling the proverbial dice by engaging in protracted, costly and volatile litigation. Because money issues are a leading cause of divorce, engaging in this type of open and honest communication about financial matters prior to marriage could diffuse some of that tension and help build a strong foundation for the future. Following the steps outlined above will help in not only making the process more comfortable, but also in ensuring that the agreement remains valid and enforceable in the years to come.
Michele M. Jochner is a partner at Schiller DuCanto & Fleck LLP in Chicago, an internationally renowned matrimonial law firm, where she handles high-asset, complex appellate matters, as well as critical trial pleadings requiring sophisticated analysis, advocacy and drafting. A former law clerk to two Chief Justices of the Illinois Supreme Court and a sought-after speaker and a recognized thought-leader who has penned more than 200 articles, she has been honored as one of the “Top 50 Most Influential Women in Law” by the Chicago Daily Law Bulletin and has been recognized by The Best Lawyers in America® since 2015 in Family Law. She has also held leadership positions in a number of organizations, including the Illinois State Bar Association and the Chicago Bar Association, and is the immediate past Chair of the Minimum Continuing Legal Education (MCLE) Board of the Illinois Supreme Court.
