In the event that your marriage does end unsuccessfully, a prenuptial agreement can save you tens of thousands of dollars in legal fees, and help take time and stress out of a divorce. In this podcast, DuPage County divorce lawyer Chuck Roberts discusses the many benefits of creating a pre or postnuptial agreement in Illinois, while answering some common questions regarding these documents, including whether or not you can create your own prenup, or revise the current one you have with your spouse.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Chuck Roberts, Divorce Lawyer
With more than 30 years of experience in family law, Chuck Roberts has gained a reputation in the community for his ability to handle complex divorce cases, including contested child custody cases and cases where there are complex financial issues. He is considered to be the go-to suburban solution for professionals, business owners, sports figures, and their spouses to help navigate the challenging waters of the divorce process. To learn more about Roberts and his law firm – Momkus McCluskey Roberts LLC – visit www.momlaw.com.
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Read the Transcript of this Podcast Below.
What is a premarital agreement and what is discussed in it?
It’s a document that’s entered into before the marriage by the parties before they celebrate the nuptials and is then effective upon their marriage. The timing is significant. Presumably there are few, if any, major disputes between the parties at the time, or a few months before the marriage. Nothing has really had an opportunity to go very wrong at that point in time, and the parties can memorialize their philosophy in writing.
Potentially they save themselves tens of thousands of dollars in legal fees if they’re later fighting over things which they had previously agreed upon. So assuming that the court finds the premarital agreement to be valid, it’ll be accepted by the judge. It then controls all of the issues which it addresses, and takes all of those issues out of the controversy in the ensuing divorce litigation, concretely streamlining the process.
A prenup can address the property division of assets that are owned before the marriage, assets that are acquired after the marriage, spousal support – or what we oftentimes refer to as spousal maintenance. It can address issues related to attorneys’ fees that might be incurred in the divorce. It can talk about estate planning, and it can talk about allocation of any debts that the parties may have.
The only topic that’s completely out of bounds in a prenup in Illinois relates to the custody and living arrangements for children. Equally out of play then would be child support or any allocation of college expenses. But essentially any other issues that might arise between parties are fair game for treatment in that prenup context.
What is a post-marital agreement how does that work?
A post-marital agreement is a document that can be supported without any consideration, so there doesn’t have to be anything given up in the process of entering into that. The legislature in Illinois encourages people, if they are able to peacefully resolve potential disputes, and to do so in writing, and it has to be signed. That’s something that is completely enforceable and readily accepted by the courts.
What is the value of getting a prenuptial or doing a post-marital agreement in Illinois?
Look at the cost benefit of a prenup, it’s immediately apparent that it’s a good investment for each party. It gives some much needed certainty to the relationship. If this marriage is going to end unsuccessfully, you know by simply pulling out the document what 80% or 90% of the issues are going to look like in a post-divorce setting.
It’s a good reality check for both parties to a marriage, and I almost universally recommend to people that they enter into some kind of a prenup agreement before they actually enter into the marriage. It really can save time, aggravation, and helps keep the hostilities down in an otherwise very contentious setting.
What does the couple need to do to create a premarital agreement?
In order to create the prenup each party is going to need to assemble a list of their income, assets, debts, and expenses. An agreed-upon list of issues is also going to help the lawyer who is going to negotiate and draft the prenup. Presumably the parties have discussed, at least in a general sense, what they’re trying to accomplish with the prenup before they consult with their attorney. Exchanging that information with the lawyer, together with the income, assets, debts and expenses, there’s going to be a real good start in the process.
In the case where one or both of the parties is entering into their second or even third marriage, do you think it’s even more important in those cases that they do a prenuptial agreement?
Yes, those are the situations there’s all kind of potential landmines that are out there. You can talk about ownership of the home that the parties are going to occupy, you can talk about payment of mortgage, and what about necessary repairs in the future? Who’s going to pay the real estate taxes? Who’s going to benefit from the appreciation in the value of the house? Who’s going to benefit from the reduction in principle on the existing mortgage?
Those are all things that can be resolved in advance of the marriage at a time that we have a good working relationship between these parties. You can essentially set up an estate plan in the prenup. If each side has children from a prior relationship, for example, will the husband’s children with somebody else going to inherit the wife’s share of the estate? Are they going to inherit from the wife’s nonmarital estate? Are they going to only inherit from property that’s accumulated during the marriage? There are all kinds of issues that arise when there’s children from prior relationships on each side, and it makes a lot of sense to do that in advance of entering into the marriage.
Now Chuck, I know you’ve done a good number of premarital agreements. I also know you’ve done many, many divorces. Do you find that it helps reduce litigation or eliminate litigation if people do have a prenuptial agreement?
It probably doesn’t eliminate litigation but it sure does significantly reduce the complexity and the cost and the duration of it. With a well thought out pre-nup, we’re able to get down to just questions about any children that might arise as a result of the marriage, we can essentially resolve everything else ahead of time.
Assuming that it’s properly done and that there hasn’t been any extraordinary sets of circumstances that have arisen, all of those prior agreements are going to be accepted by the court and incorporated into the divorce judgement. It takes a large part of the financial back and forth out of the divorce and it really does streamline the process.
If somebody does do a prenuptial agreement, can they come back at a later date, to make a change to it if circumstances have changed or they forgot to include something?
They sure can. All that’s really required is that the document be in writing and that it be voluntarily entered into by each party. When we’re talking about modifying either an existing prenup or entering into a post-nup, if there wasn’t a prenup that was entered into that’s a slightly more tricky situation, and there is certainly a lawyer needed on each side of that transaction, it’s for the safety and protection of both parties. But the answer is absolutely it can be done.
Is there anything else that you can think of that is a benefit of doing a prenup or post-marital agreement?
Other than providing the certainty of what’s going to happen in the event that this marriage breaks down and ultimately ends in a divorce, from the timing standpoint, from the cost standpoint, and from taking out issues that are going to be in controversy between the parties, we really don’t see that there’s any downside to it. There are a number of significant benefits that are available, so for that reason we recommend to almost everyone that they enter into a prenup before they get married.
Do you need an attorney to do a prenup or could you do it on your own?
If you listen to the radio long enough you’re going to hear one of these ads about one of these internet websites where for – I heard one the other day for $29.95, you can have a form that you download off their website, and you fill in a couple of blanks and sign it, and call it a prenup.
I’ve been involved in litigation where those types of documents are challenged and they’ve been set aside by the court, so someone might think that they have the benefit of a prenup and it turns out later that the document that they have is nowhere close to what was necessary to actually be found enforceable by the court.
So is it theoretically possible to do it yourself or to do it without a lawyer, or to go to the internet? Sure, I guess anything is possible but it certainly isn’t something that’s recommended.
Can you give us an idea of what somebody might spend to do a proper prenuptial agreement?
It’s surprisingly inexpensive. Assuming that you’re represented by a lawyer who’s been through this process, it’s a relatively straightforward situation. Your lawyer should be able to get the work done and the negotiations completed and give you a signed, enforceable document by maybe expending a handful of hours. So it’s not necessarily a long, drawn out, expensive, complicated process. It’s relatively straightforward. The cost benefit analysis clearly is in support of getting a prenup done, and having it done properly.
For more information about Chuck and his firm, visit his website: www.momlaw.com