Number of Couples Opting for Prenups on the Rise

 Posted on May 27, 2014 in Prenuptial & Postnuptial Agreements

The number of couples entering into prenuptial agreements is trending upward in the United States. That trend correlates with consistently high divorce rates and a growing societal acceptance of such agreements. A 2010 poll revealed that 44 percent of single and 49 percent of divorced Americans believe in prenuptial agreements (colloquially known as prenups). Moreover, among the divorced, 15 percent regret not having one.

Acceptance of prenuptial agreements is spreading across cultures. For example, while prenups are not formally recognized in England or Wales, that might soon change. Divorce lawyers in those countries have reported that their clients are increasingly expressing interest in prenups. Furthermore, a government adviser recently recommended introducing a marital agreement form as part of a divorce system overhaul.

How to Execute a Prenuptial or Postnuptial Agreement

A prenuptial (or premarital) agreement is a contract made between prospective spouses that takes effect when the couple marries. The agreement must be in writing and signed by both parties. While the specific contents will vary by couple, a typical prenup discusses:

• How marital assets will be divided if the couple separates or divorces;

• Each party's rights and obligations regarding marital (acquired during the marriage) and non-marital (brought into the marriage or individual inheritance) property( this includes the right to buy, sell, use or otherwise manage and control the property); and

• The desired terms of spousal support (alimony) post-divorce.

After marriage a prenup may be amended or revoked only by a written agreement signed by both parties. Otherwise the prenup is a valid contract enforceable by law -- unless it actually is not a valid contract. A prenup is not enforceable if either party proves that:

• He or she did not execute the agreement voluntarily; or

• The agreement was unconscionable when executed because he or she lacked adequate knowledge of the property and was not provided a fair and reasonable disclosure of the other party's financial obligations.

A court may also choose to impose alimony terms different from those expressed in the prenup in order to avoid undue hardship caused by unforeseen circumstances.

A couple that chooses not to execute a prenup has another option. A postnuptial agreement is a contract made between spouses that addresses issues that could have been covered in a prenup. Like a prenup, a postnuptial agreement must be in writing and signed by both parties. It must also be entered into voluntarily and, comparable to a prenup, may not include unconscionable terms.

The decision to enter into a prenuptial or postnuptial agreement is highly personal. For some, personal financial worth and gold-digging fears might be the motivating factor. For others, it might be concerns about the future should the relationship fail or a desire to avoid unnecessary drama in the event of divorce.

Whatever your reason, it is important to understand that these agreements are contracts. And like with any contract, you need an experienced attorney to help comb through the fine print. If you are considering a prenuptial or postnuptial agreement, contact an experienced Kane County family law attorney today. We can assist those in the St. Charles area.