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Are Prenuptial Agreements Recommended by Attorneys?

Until recently, very few attorneys advised couples to get premarital agreements. The web of laws and procedures governing these agreements was complex, to say the least. Furthermore, enforcement was very uneven. Premarital agreements that were enforceable in one Illinois county might be unenforceable in another one. The laws were that subjective.

Then, Illinois lawmakers adopted the Uniform Premarital and Marital Agreements Act, and everything changed. The UPMAA streamlined various laws, rules, and procedures. So today, in as little as one office visit, an attorney can draft a fully-enforceable premarital agreement that covers a wide range of topics.

Prenups have a number of benefits, which is why most attorneys now recommend them, especially if one spouse has been married before. However, it can be difficult to pitch these agreements to the other spouse. Think of a premarital agreement as a life insurance policy. These policies, like premarital agreements, help people prepare for the unexpected. That’s what responsible people do.

These and other benefits are within easy reach. As mentioned, a prenuptial agreement lawyer in Naperville can quickly craft a prenup. Later, if need be, an attorney can enforce this agreement in court. As a result, the financial and nonfinancial provisions of these agreements usually remain intact.

Marital Property Division Rules in Illinois

One big reason prenups are so flexible in the Prairie State is that Illinois is an equitable division property state. Equitable is not the same thing as equal. Instead, judges have broad discretion to divide marital property as the facts dictate, according to the following factors:

  • Standard of Living During the Marriage: Divorce almost inevitably lowers the standard of living for both spouses. In fact, the end of the pooled income and shared expenses is often quite a shock. However, under Illinois law, divorce cannot be an unfair financial burden on either party.
  • Custody of Minor Children: Bear with us here. Usually, it’s in the best interests of the children for them to remain in the family home. In these cases, the residential parent usually receives full legal title to the house. Furthermore, the non-residential parent might need to help with mortgage payments, at least temporarily.
  • Future Earning Capacity of Each Spouse: Typically, healthy, young, and well-educated people can earn more money in the future than older, sicker, and less-educated individuals. If the disparity between the spouses is significant, the property settlement must account for these differences.
  • Agreements Between the Parties: This bullet point might be the most important one on the list. Usually, family law judges are anxious to avoid family law trials. Therefore, they usually approve any divorce or pre-divorce property agreement, as long as it meets certain specifications.

Most of these factors seem rather subjective, and they are subjective. Therefore, when a prenuptial agreement lawyer in Naperville drafts a premarital agreement, the attorney has considerable leeway.

However, this leeway is not unlimited. Prenuptial agreements must follow the same marital property division rules. The judge won’t enforce an inequitable premarital agreement. However, just like there’s a difference between equitable and equal, there’s a difference between inequitable and unconscionable. More on that below.

Making a Prenuptial Agreement

Monetary disputes are one of the leading sources of marital strife. Basically, some people are spenders and some people are savers. In other words, they have different approaches to financial matters. Neither approach is necessarily wrong. They’re just not the same. For this reason, people typically make premarital agreements for financial reasons. So, we’ll start here.

Basic financial provisions in premarital agreements usually include property classification and spousal support.

When people bring assets or debts into their marriage, these debts or assets are nonmarital property. However, especially after a lengthy marriage, the line between marital and nonmarital becomes very blurry.

Assume a husband owns a project 1973 Gran Torino at the time of marriage. Over the years, he uses money from his paycheck to fix up the car. By the time of divorce, the car is extremely valuable.

Initially, the Gran Torino was nonmarital property. But since the husband used marital assets (money from his paycheck) to improve this asset, it’s arguably marital property at the time of divorce.

Prenups eliminate these problems. These agreements, which can be amended at will, firmly classify assets as marital or nonmarital, regardless of property commingling.

As for spousal support caps, many prenups include stair-step provisions. The longer the marriage lasts, the higher the cap rises. These provisions are generally enforceable in Illinois and other UPMAA states.

Additionally, prenups usually cover inheritance and succession questions. That’s especially true if either spouse has children from another marriage. Legally, divorce usually cuts off inheritance rights. Frequently, that’s not the result a spouse wants. A prenup can establish legal inheritance rights where none exist. Prenuptial agreement lawyers in Naperville often draft executory documents, like wills and trusts, to clarify inheritance and succession provisions.

Breaking a Prenuptial Agreement in Illinois

No contract is ironclad, this includes premarital agreements. However, as mentioned, there is a strong undercurrent in Illinois family law that favors approving agreements between the parties.

In ye olden days, Cook County judges had considerable discretion to invalidate prenups that, for one reason or another, they deemed unfair. The UPMAA typically only recognizes two grounds for prenuptial agreement invalidation:

  • Involuntary: Generally, prenups are involuntary if one spouse didn’t have a fair chance to consider and sign the prenup, or the challenging spouse didn’t know what s/he was signing. Pressure to sign must almost amount to physical pressure to sign. Psychological warfare, no matter how intense, is insufficient. Spouses don’t know what they are signing if the other spouse withheld important information and the challenging spouse had no other way of learning this information.
  • Unconscionable: As mentioned, there is a big difference between uneven and unconscionable. An 80-20 split is uneven. But, there are certainly some situations when a spouse would voluntarily sign such an agreement. A division like “You get all the debts and I get all the assets” is usually unconscionable. No one would sign something like that under normal circumstances. Additionally, challenging spouses must prove the agreement was unconscionable when it was made.

If all these things sound complex, don’t fret. The bottom line is simple. In most cases, if each spouse had an independent Naperville prenuptial agreement lawyer for the entire process, a judge will enforce it. “Independent” usually includes a funding source. If the husband paid for the wife’s lawyer, her lawyer wasn’t really independent.

Extreme circumstances could come into play as well. If the wife springs a prenup on the husband days before a destination wedding, when all guests have prepaid travel plans, the husband doesn’t have a realistic opportunity to thoroughly review the prenup and all its implications, lawyer or no lawyer.

How It Works

Another UPMAA benefit is that Illinois prenups are often enforceable in other UPMAA states since the rules are the same. To see how all these factors work together, let’s examine the case of Frank and Jamie McCourt, the SoCal billionaire power couple who owned the Los Angeles Dodgers in the early 2000s. California and Illinois are both UPMAA states.

A complete analysis requires a trip in the way-back machine to 1988. That year, the Dodgers beat the heavily-favored Oakland Athletics in the World Series, largely on the strength of Kirk Gibson’s improbable winning home run in Game One.

But over the next decade, the team was mediocre at best. The notoriously fickle Los Angeles fans stopped buying tickets and team merchandise. They also stopped watching games on TV. So, team revenue declined significantly.

Frank and Jamie bought the team at what they thought was the team’s low point. Unfortunately, as the early 2000s progressed, the team’s financial fortunes sank even lower. By 2011, the team was so cash strapped that the owners needed an emergency loan from Major League Baseball to make payroll. The league refused to loan them money, and the team filed for bankruptcy.

In the midst of all this financial drama, the McCourts were dealing with marital drama. Reportedly, there was already trouble in paradise when Frank caught Jamie in a rather compromising position with her bodyguard.

As their divorce progressed, since the Dodgers were essentially worthless, Jamie gave her half of the team to Frank in exchange for about $180 million in cash and real property.

After the team emerged from bankruptcy, its fortunes quickly changed. After all-world pitching ace Clayton Kershaw and some other key players joined the team, the Dodgers suddenly became contenders. As a result, the team became valuable again. Frank quickly sold the team for $2 billion (with a “b”).

Jamie then sued to overturn the premarital agreement. She claimed it was unconscionable because it left her about $720 million short of a 50-50 split in a community property state. Jamie also claimed Frank lied about the team’s value, so the agreement was involuntary. The court disagreed on both counts.

As for unconscionability, the agreement was not unconscionable when it was made, according to the court. “Jamie simply chose the security of a guaranteed $131 million payment, plus more than $50 million in real and personal property, over the uncertainty and risk presented by the valuation and sale of the Dodger assets,” the ruling stated.

Furthermore, as for involuntariness, the court noted that, at the time, Jamie was still a Dodgers co-owner. Therefore, she had unlimited access to team financial figures.

So, Jamie lost her appeal. She even had to pay her ex-husband’s considerable legal expenses. However, the story has something of a happy ending for her. Jamie, a longtime Republican fundraiser, became ambassador to France and Monaco in 2017. That’s not a bad consolation prize.

Connect With Our DuPage County Prenuptial Agreement Lawyer

In almost all cases, a premarital agreement is at least worth considering. For a free consultation with an experienced Naperville prenuptial agreement attorney, contact Keller Legal Services by calling 630-505-1515. Convenient payment plans are available.