Typically, when spouses decide to enter into a prenuptial (before marriage) or postnuptial
(after marriage) agreement, the question is not whether an agreement is necessary or useful, but whether the agreement is drafted with your best interests in mind. A prenup or postnup is only an efficient tool when it supports your needs and protects your rights— otherwise, you are at risk for wasting a lot of time, energy, and money.
Ensuring a Successful Marital Agreement
Regardless of the type of marital agreement you decide to pursue, ensuring it is a successful one is paramount. The draft you create will determine your lifestyle in the event your marriage takes a turn for the worst, so the boundaries you establish in your agreement hold a significant amount of power. Ask the following questions when determining whether or not your pre or postnup will serve your best interests:
- Do you have a proper attorney? Proper legal counsel is a must, and this means each party needs an attorney who is highly qualified and capable of negotiating effectively. Whomever you choose, your attorney should be well versed in family law and the ins and outs of marital agreements. He or she will draft the agreement and be responsible for presenting it to the other party’s attorney. From that point on, the negotiation process will begin, which is why it is crucial to make sure you are working with a competent professional.
- Are both parties offering full disclosure? To avoid the risk of serious fraud or breach of fiduciary duty, both parties must offer complete transparency by fully disclosing the property and possessions they bring to the table. Everything from real estate and stocks to retirement plans and business ventures need to be disclosed, as well as any employee benefit plans. Each party is expected to not only disclose what he or she currently owns, but is expected to disclose what he or she is in the process of purchasing or what he or she may own in the near future.
- Are both parties providing thorough detail? Communication is everything when it comes to drafting a marital agreement, which is why full disclosure from both parties is so important. The same truth applies to the details surrounding that disclosure. For example, if a certain type of property is not to be included, you or your spouse need to clearly state that in the agreement. You both must provide as many specific details as possible concerning what you are potentially splitting and what property does not apply. Any terms that are not agreed upon will be addressed during negotiation.
Postnuptial agreements can be the most tricky, as a couple’s property is considered joint marital property, being as they are already married. The division of such property requires great attention to detail and a thorough understanding of divorce law. If you are considering a marital agreement of any kind, be sure to speak with a knowledgeable Elmhurst, IL prenuptial agreement attorney right away. Call Weiss-Kunz & Oliver, LLC today at 312-605-4041 for a personal consultation.