The Future of Prenups

Post Authored by Madison H. Templin

(Originally posted on http://www.beermannlaw.com/the-millennial-prenup/)

Prenuptial Agreements, Generally:

Simply stated, prenuptial agreements (“prenups’) are legal documents that dictate how couples agree to divide their assets if they were to get a divorce. Prenups can also direct how couples intend to share expenses during their marriage, the payment of spousal support, and much more. Illinois has adopted a Uniform Premarital Agreement Act which governs the formalities, effect, and enforcement of prenups. 750 ILCS 10.

Millennials and Prenups: On the Rise, and Why:

While millennials oftentimes find themselves the punchline of jokes relative to their role in today’s society, it appears many are taking a no nonsense approach to marriage. In late 2016, the American Academy of Matrimonial Lawyers released a survey citing an increase in the number of millennials requesting prenuptial agreements. [i]

Why? Some might attribute millennials marrying later, therefore, accumulating more ‘premarital wealth’ they desire to protect. [ii] Many note that more than one-third of millennials grew up with single or divorced parents, and are hopeful a prenup can help avoid a divorce becoming unnecessarily acrimonious. [iii] Further, dual income households are much more prevalent now than they were historically, motivating both partners’ interest in the protections a prenup can provide.

It’s easy to shrug off the millennial prenuptial agreement as the latest millennial #trend, but the reality is prenups can have a real value to anyone owning a property or business, planning to take off time to raise children, anticipating receiving inheritances, having a considerable amount of premarital wealth, or even holding a significant amount of premarital debt – i.e., student loans.

Preempting the Prenup: The Earlier, the Better:

From a practitioner’s standpoint, the earlier a prenuptial agreement can begin being negotiated, the better. The unfortunate reality is many couples find themselves immersed in the joy (and stress) of planning a wedding, and discussions regarding their financial future become less of a priority.

It is not unusual for a family law practitioner to receive a call from a prospective client the week before (or of) a wedding looking for a speedy draft of a prenup. We have all heard the ‘horror’ stories of the prenup signed on the eve of a wedding, or even in the limo on the way to the church. The exposure this kind of shotgun negotiating can open practitioners up to cannot be understated and is seldom worth the risk.

While simply signing an agreement on the eve of a wedding is, in and of itself, likely not basis invalidate a prenuptial agreement, unfortunate timing coupled with other factors can carry weight when a Judge is determining the conscionability of an agreement.

The following are the ‘avoidable’ bases to invalidate a prenuptial agreement:

A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily; or

(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. 750 ILCS 10/7.

Of course, there is always the unavoidable. The ‘undue hardship not reasonably foreseeable’ is not something even the most skilled practitioner can draft around or avoid. Accordingly, the Enforcement provision of the Uniform Premarital Agreement Act concludes,

(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship. 750 ILCS 10/7(b)

This all being said, planning early, providing a full disclosure, and affirming your client has an understanding of the terms of their agreement can help ensure your client is protected to the best of your ability.

Normalizing these Negotiations:

As a practitioner, I find myself often working to normalize the conversation surrounding these frequently misunderstood contracts, whether it be with prospective clients or just family and friends.

Many people have a perception of a prenup being a ‘winner take all’ agreement, where one spouse is penniless and the other is left to enjoy any wealth amassed during the marriage. This perception perpetuates the idea of prenups being ‘taboo’ or ‘offensive.’

It is important to understand, most people approach prenups as a proactive, protective measure, hopefully placed in a drawer, never to be needed again. I always say, in a perfect world, a prenup is signed, sealed, and remains undelivered.

Know your Negotiation:

For anyone considering a prenup, it is essential to contact a lawyer to find out what you can and can’t contract for, in addition to  addressing the topic early on with your partner. Further, you want to be sure you, or your client, protect yourself from the other party requesting to invalidate the agreement on any basis.

Final Thoughts:

While you cannot always contract for peace of mind, a prenup can certainly help. Lack of romance aside, prenups can help couples avoid the heartache (and expense) of a contested divorce should their happily ever after end prematurely.

[i] http://aaml.org/about-the-academy/press/press-releases/prenuptial-agreements-rise-finds-survey

[ii] http://www.pewresearch.org/fact-tank/2018/03/16/how-millennials-compare-with-their-grandparents/

[iii] http://www.pewresearch.org/fact-tank/2010/03/22/missing-mom-or-dad/

About the Author:

Madison H. Templin counsels clients on a wide range of divorce-related matters, such as financial planning, legal separation, pre- and post-nuptial agreements, child custody, visitation, support, property division, domestic violence and post-divorce issues. Ms. Templin is a graduate of DePaul University College of Law, where she earned a Certificate in Family Law.  Prior to joining Beermann Pritikin Mirabelli Swerdlove LLP, Ms. Templin worked as a law clerk at a prominent family law firm in Chicago. Before beginning her legal career, Ms. Templin graduated from High Point University in North Carolina with a double major in English Literature and Creative Writing.

Click here for Madison’s full bio.