In the world of celebrities and millionaires, in which whirlwind romances (and splits) are par for the course, prenuptial agreements find themselves at the center of focus for many couples. These contracts help decide who gets what, and when they may receive it after a divorce.
Though we may find the intimate details of a prenup splashed across the front covers of the tabloids, the practice of prenuptial agreements has become widespread among the non-celebrity populace. According to a recent survey compiled by the American Academy of Matrimonial Lawyers, (AAML), 63 percent of divorce attorneys have seen an increase in the number of prenuptial agreements signed, and, more interestingly, that 46 percent of lawyers surveyed found that women were the initiators of the prenuptial agreement discussions; this is most likely due to the fact that women, nowadays, are more likely to be breadwinners for the family. Additionally, 80 percent of lawyers surveyed believed that the top reason for prenuptial agreements was to protect separate property.
Prenuptial agreements can create friction before the couple marries, and can lead to later tension at the memory of the prenuptial negotiations. Though prenups are considered to be a financial safety net in the case of a “crash and burn” relationship, it sends the message to young couples on the verge of marriage that they will love each other only for a definite period, after which they may be entitled to financial or material gains.
It is important for every couple about to enter into marriage to decide if the prenuptial agreement negotiation is worth the potential disagreements and the hard feelings that could result from the discussion. The Huffington Post provided a few considerations when drafting a prenuptial agreement and whether it is right for you and your partner.
First and foremost, prenups should be the exception rather than the rule. For example, prenups are there to protect the debts and assets that you are bringing into the marriage. If you and your soon-to-be spouse are about to enter into your first marriage, and if you are making less than $100,000 annually, it may be unnecessary since the separate property that you are bringing into the marriage may be limited.
Prenuptial agreements are ideal for couples who meet the following criteria:
- They come from previous marriages;
- They have previous financial burdens such as alimony or child support;
- They have substantial pre-marriage assets; or
- They are elderly couples who want to ensure that their assets are left to their children.
When drafting a prenup, each party should consider his or her wants and needs, and should articulate them carefully and delicately. In addition, the prenup could be a great opportunity to evaluate the way each party imagines their financial lifestyle. Is one party more of a saver and the other a spender? What are the financial burdens that each must bear, such as tuition loans and debt, child support from another relationship, or an aging parent? Who will be responsible for paying the bills? Who will file the taxes? Would one party prefer to file jointly or file as married filing separately?
Take advantage of this conversation to evaluate what you want and need from a prenuptial agreement, and have an open and respectful conversation about finances. Each party may be surprised to find out how the other perceives money.
Finally, it is important to attempt to keep non-financial matters out of the prenuptial agreement. The Huffington Post has reported on the use of nonfinancial clauses in the prenuptial agreements. This could extend to provisions addressing issues such as weight gain, infidelity, sexual routines, bad habits such as smoking, and the way relationships among other family members such as in-laws and exes and their children should work. These marital obligations may only breed ill-will between the couple and the feeling of being “trapped” in the marriage. Unless there is some essential reason that both parties believe a nonfinancial clause should be drafted into the agreement, it is important to keep the prenuptial agreement solely about finances.
Prenuptial (and post-nuptial) agreements are a delicate subject among the soon-to-be wed. It is important that this conversation be handled with care and with a neutral, third party who can help determine whether you and your partner not only need a prenuptial agreement, but the type of information that should be evaluated, analyzed, and drafted into the agreement. An experienced DuPage family law attorney may be able to answer any questions that you may have on the use of prenuptial agreements and can advise you and your partner on the intricacies of prenuptial agreements.