Prenuptial Agreement Lawyer Chicago
What is a prenuptial agreement?
A prenuptial agreement (or premarital agreement) is a contract between parties prior to their marriage that sets forth financial rights and responsibilities in the event of divorce, including property rights and claims to income. In appropriate circumstances prenuptial agreements are very useful. Note, however, that the parties cannot adversely affect the right of a child to support through a prenuptial agreement. Nor can the parties preemptively deal with parental responsibilities for a child (i.e., decision-making f/k/a custody and parenting time f/k/a visitation).
What are reasons a couple should get a prenup?
There are many reasons why a prenuptial agreement may be beneficial. A party may have existing assets or wealth that they want to protect, including income. A party may anticipate receiving property in the future, such as inheritances or gifts, or they may be in the fortunate position of having multi-generational wealth in their family. Beyond the financial affairs, prenuptial agreements can make any eventual divorce process more efficient, less costly, and less time consuming.
Is a prenup only in place to take care of the couple in case of divorce? Or does it help in inheritance issues?
A prenuptial agreement is only a contract between the parties; as such, it only controls their rights and responsibilities in the event or divorce or, in certain instances, in the event of death of one of the parties during the marriage. Prenuptial agreements can and often do make provision for future property, such as inheritances received during the marriage or other expectancies.
Can a prenup be discarded if both parties agree they don’t want it anymore?
Yes. Generally speaking, the parties to a contract (such as prenuptial agreement) are free to mutually disregard the terms and do whatever else they want in the future. However, in the absence of any such mutual agreement, and in the absence of a determination that the contract is invalid and/or enforceable (for example, if it is found to be unconscionable) then parties’ rights and responsibilities will be controlled by the contract.
What does someone need to bring with them to a prenup consultation?
A current snapshot of their financial affairs, including their assets, debts and property, and their income and the sources thereof. It is best if this information is compiled on a summary sheet such or a personal financial statement; supporting documents for the items listed therein should also be provided. If the person is a beneficiary of a trust, the controlling documents and asset schedules for those trusts. The person should also bring at least two years of personal income tax returns, including K-1s, as well as at least two years of business tax returns for any businesses or partnerships that they have an interest in. Aside from the financial summary, the person should bring a list of questions they have for the Chicago prenuptial agreement attorney as well as a few bullet points on their stated goals and desires for the agreement.
Can you give an example how a prenuptial agreement has helped one of your clients?
I’ve had clients get through their divorce process relatively quickly and inexpensively when they’ve had prenuptial agreements in place. In contrast, those clients without prenuptial agreements can have divorces that drag on for years in the court system which can get prohibitively expensive and emotionally draining. When divorces get done faster and more efficiently it enables both parties to move on to the next chapter of their lives with less acrimony and more money to put toward their future.
Why should someone choose your Chicago prenuptial agreement law firm for creating their agreement?
Because we have not only drafted many prenuptial agreements, but we have also litigated their enforceability. This litigation experience enables our firm to understand common pitfalls where prenuptial agreements have been held to be invalid in court and thus we can take steps (both drafting and in the process leading up to it) to make them more likely to be upheld in the future.
Who needs to get a prenup?
There is no bright line answer. However, the following people should seriously consider getting a prenuptial agreement: (1) people with substantial existing wealth or income; (2) people who anticipate receiving property through gift or inheritance during the marriage; (3) people getting married for the 2nd or 3rd time; (4) people with children from a prior relationship for whom they want to make provision for; (5) anyone else who wants their divorce process to proceed more efficiently if/as/when if ever it occurs.
If a couple doesn’t believe in divorce, why would they need to consider a prenup?
Things change. Life is not static and neither are people’s beliefs. Couples who never think they will get divorced could end up getting divorced. Couples who think they have no chance at long term marriage could end up being married forever. Prenuptial agreements are like insurance. If things do not turn out as planned, then at least the legal part of the divorce becomes more efficient.
There are a few basic steps to follow to help ensure that a prenuptial agreement is upheld should it later be challenged. Those include:
- Time. Begin the process early and allow for sufficient time to negotiate, review and revise drafts, and investigate financial affairs. Prenuptial agreements are more likely to be invalidated if they are hastily drafted in the days before the wedding or signed on the way to the altar. Generally speaking, the more time the better as this better enables the parties’ attorneys to competently advise their clients and it detracts from a later argument that someone was under “duress” or “coercion” at the time they entered into the agreement.
- Disclosure. Both parties need to make a complete, fair, and reasonable disclosure of their respective property and financial obligations, and that disclosure should be well documented and acknowledged by the other party. This includes disclosing all assets, debts, expectancies, income and the sources thereof. A summary schedule should be created and supporting documents provided. Sufficient time to review those disclosures and to enable follow-up inquiry should also be provided. The failure to disclose all of your financial affairs can be a significant factor in later challenging the validity of a prenuptial agreement. While waivers of disclosure may be possible, it is always better to provide a full disclosure and to provide time for full investigation of financial affairs.
- Representation. Both parties should have independent legal representation. This is a simple and effective way to help ensure that the agreement is fair, reasonable, and likely to be upheld in the future. If one party lacks the resources sufficient to pay for their own attorney, the other party should provide them with funds to do so. It will be much more difficult for a party to later challenge the agreement if they had adequate legal counsel at the time they entered into it. Note, however, that the Chicago prenuptial agreement lawyers drafting and negotiating the agreement may be disqualified in representing the same parties in later litigation concerning the agreement as they are potential witnesses.