Having a prenuptial agreement is far from a guarantee that the division of property will be clear-cut in the event of a divorce. McHenry County domestic relations Judge Ward Arnold said there are two basic requirements for prenuptials: there must be a full disclosure of assets, and they must be fair. It`s the latter requirement that gets sticky. Who determines what`s fair? Sometimes, it`s a judge.
Since fairness can be so subjective, prenuptials can be ”a thorn in the side of judges,” Arnold said, ”because it depends on whose ox you`re goring. If you are the wife or you are the husband, fairness might mean quite different things. That`s why many prenuptials end up in judges` laps to determine what was fair.”
Arnold added that he sees very few prenuptial agreements in his McHenry courtroom and hasn`t noticed an increase lately. He knows there are more out there, though, than just the ones that end up in domestic relations court.
”There are some out there I never see,” he said, ”because they settle the case and I just see the settlement agreement.”
What Arnold sees are the challenged prenuptials, and he estimates he reviews three or four of those a year.
The numbers of prenuptials being challenged could be declining, Arnold said, because of a new Illinois statute effective since January of 1990. The statute sets out a specific manner in which the agreements must be written.
Deciding whether a prenuptial is fair isn`t always easy, but it`s frequently simpler than making decisions in divorces regarding children, Arnold said. Child support, custody and visitation issues can`t legally be included in prenuptials, and it`s those kinds of quarrels that are most difficult for Arnold to settle.
”The percentage of people who use prenuptial agreements is extremely small to start with,” he said, ”and most of the problems I see in divorce are over non-money things. It`s much easier for me to settle a divorce when money is involved than when kids are involved, and prenuptials are generally used for money issues. You can`t put those things (issues involving children) into prenuptials anyway.”
