By Marvin Mendez, Divorce and Family Law Attorney
Over the past two years of living in a pandemic, our team at Stern Perkoski Mendez has seen some major changes in marriages—and the way couples handle their finances and conflict. The increased stress has led couples to reflect on their relationships and address issues that may have previously been ignored.
I’ve noticed that because of this stress and uncertainty, more couples are choosing to establish prenuptial or postnuptial agreements. In this blog post, I’ll address some of the common questions clients have about prenups and postnups—and how to protect your wealth.
How do prenuptial and postnuptial agreements work?
Prenuptial and postnuptial agreements are contracts that address both spouses’ rights and obligations if they get divorced. The only difference is that a prenup is created prior to marriage, and a postnup is created after a couple is married.
A prenup or postnup addresses most financial matters involving you, your spouse, and your respective and joint assets. The agreements cannot address any children you have or may have in the future.
When establishing either a prenup or postnup, both you and your spouse will need your own attorney to represent your interests. One spouse and their attorney will draft the contract, and the other will review and revise it. Ideally, this agreement is made while you’re on amicable terms with your spouse, and the revision process is smooth.
While couples could write their own agreement, we don’t recommend it—as you want to be completely sure that your agreement is valid under Illinois law. (If you draft it yourself, it may not be upheld in court.)
There are two main situations in which you should absolutely establish a prenuptial or postnuptial agreement:
- You and your spouse plan to separate in the future but are waiting for one reason or another.
- You and/or your spouse have or are likely to come upon significant assets or wealth.
Let’s take a deeper look at both.
If my spouse and I plan to separate in the future, what are our options right now?
The pandemic has exacerbated many preexisting issues and unearthed relationship challenges none of us had to face just a few years ago. With this, I’ve seen an incredible influx in prenup and postnup agreements—many from couples who intend to separate but can’t yet. Here are a few reasons why, and what to do in the meantime.
- We want to stay married until our kids move out. What do we do?
I work with several clients who have agreed to stay with their spouse until their children graduate high school in a few years. For amicable spouses who rely on shared income, housing and responsibilities, it can be easier to continue coexisting while their kids still live at home.
Couples in this situation tend to prefer to establish the grounds for their separation sooner rather than later, while they’re still on good terms—so as to avoid a complicated divorce later on. If this sounds like your situation, we can help you set up a postnuptial agreement that will benefit you and your kids now, and years into the future.
- A divorce takes too long. What can we do now?
Divorce and family courts are incredibly backlogged right now due to the pandemic. In fact, many are up to three years behind schedule; and since divorce litigation can take years, this timeframe might be extended further.
Establishing a postnuptial agreement right now allows you to agree how you’ll dissolve your marriage later on. If you can wait to be officially divorced, it makes sense to create a postnup first to avoid the clogged court system. When the pandemic eases and court schedules are more efficient, you can easily separate.
- We’re working on repairing our marriage, but want a safety net just in case. Is a postnup right for us?
I work with many couples who are confronting relationship conflict but are committed to repairing their marriage. In the event they do end up choosing to separate, they establish a postnuptial agreement early on during the reconciliation process. This allows both partners to make decisions out of love and respect for one another, rather than waiting for a potentially contentious divorce to make important decisions.
If my spouse or I have significant assets, how can we protect them?
Another thing the pandemic has made couples realize is how quickly health, inheritance and wealth status can change. If you or your spouse have complex or significant assets or income, you should establish a prenuptial or postnuptial agreement.
Here are a few specific situations in which you’d benefit from these agreements:
- If you own your own business, you should have a prenup or postnup. Whether you run the business yourself or with the help of your spouse, it’s imperative to officially determine what will happen to your business in the event of divorce. Without a prenup or postnup, you risk the business being split 50/50 in divorce.
If you run your business without the assistance of your spouse, we strongly recommend you protect yourself from a potential even split of your business. If you run it together, it’s still beneficial to have a plan for how to handle business matters should you separate. Your agreement can be as narrow as you’d like and can only address your business.
- If you and/or your partner have significant wealth, or will inherit significant wealth, it’s important to consider how it would be divided in the event of divorce. During COVID-19, many individuals have gained an exorbitant amount of money—especially through crypto currencies and the stock market. Whether this has affected your relationship or one of you simply came into the marriage with a lot of wealth, high net worth marriages should always have a prenup or postnup in place.
- If you’re getting married later in life, it makes sense to keep your assets separate. Especially if you or your spouse have children and/or wealth from a previous marriage, creating a prenup or postnup can benefit you all.
- If you simply want to be cautious. Many folks who get married in their 20s or even 30s do not yet have significant assets, but are aware of their future earning potential. Moreover, they grew up during a time in which divorce was incredibly common; many have seen their parents or friends’ parents spend tens of thousands of dollars on a contentious divorce. So even though these couples have no intention of divorcing, they create a prenuptial agreement just to be careful.
How have prenups and postnups changed during COVID-19?
During the pandemic, we’ve seen roughly a 150% increase in prenuptial and postnuptial agreements! They offer predictability amidst many uncertainties, and our clients report they reduce anxiety significantly.
A prenup or postnup can always be adjusted in the future, but preemptively creating it while you’re on good terms with your spouse can reduce anxiety now—and is incredibly beneficial in the future if you need it.
Contact Our Divorce and Family Law Firm in Evanston, Chicago, Lake Forest and Oak Brook
When choosing an attorney, it’s important to work with someone who understands your finances and your unique goals. If you need support for your prenup or postnup, I’ll first work to understand your personal and financial situation. Then, I’ll offer advice in your best interest and work carefully to make sure the contract meets your needs.