Who Gets to Keep the House?

Who Gets to Keep the HouseWho gets to keep the house is often one of the most highly contested aspects of a divorce. Not only is it the largest piece of marital property, but it’s also where the couple made a home together. Many people might want to keep the house, not for its value, but for sentimental reasons, or because it’s the only home they’ve known for the past several years, or even decades. On the other hand, others might want nothing to do with a house that is now tainted with negative associations of an unhappy marriage, but they may need the house as a financial asset to help them get back on their feet after the divorce.

Try to Reach an Agreement

The ideal situation is always to talk with your spouse about what you want and why. Have an honest conversation about what each of you wants and needs from the divorce and how the house plays into that. Maintaining honest communication with your spouse is especially important if you decide to divorce through mediation or work together to come up with a divorce settlement that works for both of you.

Marital Property

The first thing to determine is whether the house can be considered marital property. In most cases the answer is yes, since newlyweds tend to buy a house together shortly after getting married and/or people move into new homes together after they’ve been married for several years. If one spouse owned it prior to the marriage, but the other made mortgage payments and/or other significant contributions to the maintenance of the house, or additions or projects that significantly increased its value, then it could give that spouse certain rights to seek a monetary award from the home.

But not all marital property is split 50/50 under the Illinois Marriage and Dissolution of Marriage Act. Instead, it gets divided based on several factors, including, but not limited to, the level of contribution by each spouse to acquiring and maintaining the property, the duration of the marriage, other property the parties will be receiving in the divorce, as well as their needs following the divorce.

Factors that Tend to Be Considered When Deciding Who Gets the House

That said, there are also other factors that play into the decision regarding which partner gets to keep the house. For example, if children are involved, the partner given the most parenting time in the divorce usually gets the house so they can keep living there with the kids. Divorce can be especially hard on children, and most judges are sensitive to the fact that letting the kids stay in the same house with one of their parents can help them adjust to the big change. Allowing the kids to stay in the house also means they don’t have to switch to a different school district or leave their friends behind, which is good for them, not only because it means minimizing the changes they have to go through, but also because they have a support system in place to help them deal with the stress of the divorce.

Sometimes the decision is less one of “who gets the house?” and more one of “who gets to stay in the house for now?” For example, if there are children involved, and the partner with the most parenting time gets to stay in the house with the kids, judges have been known to allow them the first opportunity to stay in the home. However, this is dependent on other factors, such as that spouse’s ability to refinance the mortgage, if the loan is in both names, and for that spouse to be able to afford to pay the mortgage following the divorce.

Regardless of whether children are involved, one spouse might be allowed to keep the house on the condition that they buy out the other spouse’s interest in the property. In a spousal support arrangement, the higher-earning spouse may be required to continue making mortgage, taxes, and/or insurance payments on the house, even if they no longer live there.

As you can see, divorce is a complicated situation and the more property is involved, the more complicated it gets. If you are getting, or considering getting divorced, contact our offices right away to discuss your options.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What Does Child Support Cover?

child supportIf you’re getting divorced (or thinking about getting divorced) you may be wondering how much you can expect to pay (or receive) in child support payments. Unlike alimony, which is based on a percentage of each spouse’s income, child support is calculated based on the estimated costs of caring for and raising a child.

While the amount of child support an ex-spouse is made to pay will vary depending on the divorce agreement, in most cases, child support payments are just meant to cover the basics: food, clothing, housing, and the essential needs of the children. Things like toys, school books, sports, and school supplies are not normally “covered” by child support payments, so the parent with the most parenting time needs to keep that in mind when budgeting their income (including child support) against their expenses.  The Court can, however, enter orders for child support that address these costs outside of the “basic child support obligation” that is calculated per the statute. See below.

Health Insurance

The parent paying for support may also be required to get health insurance for the child through their employer, if their employer offers it, regardless of whether they’re buying health insurance for themselves through their employer. If their employer does not offer it, the parent with the most parenting time may enroll the child in their employer’s healthcare program.  Once the cost of insurance is determined, the new child support guidelines will normally divide this cost of the child’s premium between the parents.

Orders for Supplemental Support

Depending on your unique situation, the court may order the parent who is paying child support to pay for additional expenses, including those related to education for the child, childcare, or any medical or dental costs that are not covered by insurance. It can also include expenses related to extracurricular activities, such as music lessons and sports, as long as those expenses are deemed reasonable and are intended for the wellbeing of the child, their education, and/or their social, cultural, or athletic development.

This is important to remember, especially if your children are in private school and/or are planning on attending college. The price for higher education continues to climb, so it’s common for both parents to chip in to pay those bills. The court may or may not include a supplemental order for the parent with minority parenting time to cover those costs, but either way it’s a good idea for the parents to work out between themselves who will cover how much of those costs. Not only does it make things easier on their post-marriage relationship, but it also makes things easier on the child by ensuring they can focus on what’s really important: getting a good education.

There are many factors included in divorce, especially when children are involved. Ideally, you and your ex can work together to come up with an agreement, but if that’s not possible, at least know your rights so you have some idea of what to expect.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

Can I Start Dating During a Divorce?

dating during a divorceEven though you and your spouse have decided to call it quits, dating during a divorce can be very tricky and should be approached with caution because it can come with serious legal consequences.

First of all, be especially careful if there are children involved in your divorce. Not only do you want to avoid causing them any more pain and confusion than they’re already feeling, but a vengeful spouse can use evidence of another relationship to show you’re not mindful of the children’s best interest. The last thing you want is your spouse using your new relationship (or relationships) as evidence that your home will not be a good environment for your children. This is especially true if you decide to rub their face in it. Don’t flaunt your relationship by making a big deal about it on social media or talking about it with a lot of people. Instead, you’re better off keeping the relationship quiet until the divorce has been finalized. You can still see your new flame, but keep it off social media and make sure only a few trusted friends and family members are aware of the new relationship. At the same time, however, your soon-to-be ex should be one of the people you do inform about the relationship, particularly if you have children.

Second, if you are planning to seek alimony in the divorce, engaging in a new relationship may have consequences on your arguments for seeking spousal support. Many litigants make the mistake of rushing into a new serious relationship and/or moving in with the new significant other, which can result in the Court determining that the spouse has a new source of financial support and no longer is reliant on his or her current wife/husband to make ends meets. While the factors for determining cohabitation are complex, and should be discussed with an attorney, it is usually best to avoid moving in with a significant other altogether.

Third, while you may want to go out on dates or take vacations with your new significant other, expenditures on such things may be considered by the Court to be “dissipation of assets.” What this means is that if you spend $5,000.00 on a trip to Hawaii with your new beau, your spouse could then be entitled to seek an award of $5,000.00 from your other assets to compensate him/her for money you spent on a “non-marital purpose.” Dissipation claims can be very expensive to litigate, so most attorneys will suggest that you only maintain the status quo during your divorce process when it comes to expenses.

Finally, be very careful to make sure you are spending only your own money on this new relationship. Never, ever spend marital funds or money from marital assets on another relationship because the court may require you to pay that money back to your spouse. In fact, you’re better off not spending much money at all on the new relationship. If it looks like you have money to burn, the court may either lower the amount of alimony you’re eligible to receive or increase the amount you’re required to pay, depending on your circumstances.

Of course, every marriage (and by extension, every divorce) is unique. You and your spouse may have agreed to see other people before the divorce is finalized. Your spouse might even be seeing someone. Know your spouse and know yourself in order to determine what would be the best course of action for your unique situation. In some cases, it might be putting off a new relationship until you’ve both finished signing the divorce papers.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What’s the Difference Between Separation and Divorce?

Difference Between Separation and DivorceThe main difference between separation and divorce is that, when you’re separated, you are still legally married to your spouse. While separations often lead to divorce, divorce is not inevitable once a couple decides to separate. Some couples take some time off from each other to reassess the state of their marriage. Some people decide to take a new, more successful approach to their marriage after that, while others decide to make the separation permanent by filing for divorce.

First, there’s the distinction between a trial separation and a legal separation. A trial separation is when you and your spouse decide, on your own, to live apart for a time to take a break from your marriage. The separation can last as long as you want, since it has no official end date, and you and your spouse are free to divide up the bills and assets during the separation as you see fit. This works pretty well for most people, to the point where some states don’t even provide legal separation as an option.

Obtaining a legal separation requires a court order and often involves much of the same legal processes as a divorce.

Separation is a kind of middle ground between marriage and divorce. You and your spouse remain legally married and cannot remarry until you obtain a divorce. In a legal separation, the judge cannot divide marital property unless the parties agree to the division, but they can determine custody issues, child support, and alimony for the duration of the separation.

Like divorce, in order to obtain a legal separation, you have to file a petition for legal separation in the county in which you live, then serve your spouse with papers informing them of your intention to separate.

In Illinois, you are required to have lived in Illinois for at least 90 days before you can ask for a separation in Illinois. You can still request a legal separation in Illinois if your spouse lives in another state, as long as you have lived in Illinois for the minimum required time period.

If children are involved, then the children must have lived in Illinois for at least six months before an Illinois court can determine custody. If your children live with your spouse in another state, you will likely need to file for separation in the state in which they live. Be sure to look up that state’s requirements before you file or speak with a licensed attorney there.

Once you file for a legal separation, the court will begin the legal process, and that process will ultimately end with the Judge setting a hearing date, much like a divorce hearing. There you will have your opportunity to present your side of the case and the judge will make their decisions regarding custody (or parenting time, as it’s referred to in Illinois), child support, and alimony.

Don’t forget that mediation is always an option and can help the separation process. It can make the entire process go much more smoothly than if you and your spouse are forced to abide by terms laid out by a judge. Couples who mediate their separations and divorces are more likely to abide by the terms of the agreement and are less likely to end up back in court.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What if Your Ex Refuses to Help Pay for College?

ex refuses to help pay for collegeIdeally, if your ex refuses to help pay for college you two can work out a solution without resorting to court. If that fails, here’s what you need to know about taking your ex to court if they insist on refusing to help:

Don’t Wait

Everything has a time limit, including demands that your ex-spouse pay their share of child support and/or college. If you wait too long to take your ex to court over failure to contribute to your children’s education, the court may interpret the time you waited as having waived your right to your ex’s financial contributions. If your ex has violated the divorce agreement in any way, it is imperative that you file a complaint against them immediately so you always have a paper trail to show the court.

Doing so also helps prevent your ex from claiming ignorance. Without having those complaints as evidence, your ex may be able to claim they didn’t know about the expenses. In some cases, they may even claim they had no knowledge of your child’s intention of going to college, where they were going, or what they were studying. Some people will then claim they were denied a say in their child’s future, and then you have another problem on your hands.

This is also why it’s important to maintain a record of all correspondence between your ex. Keep track of emails, letters, and statements between you and your spouse so you can prove you made them aware of the expenses and show the court your ex’s responses.

It’s also important not to wait to pursue an Order for college expenses once you know where your child wants to attend school. Many divorce judgments don’t address college because the children are too young at the time of divorce. So, we typically recommend you start the discussions about college with your ex when your high schooler starts visiting campuses. This way, if he or she indicates a refusal to help with tuition, you have time to consult with an attorney and get a motion on file with the Court.

Get an Attorney

If you can’t afford to hire an attorney to go to family court, you can take your spouse to court without an attorney – although we highly recommend you hire a competent legal professional to help represent your interests in court. If you make a mistake or forget to bring up an important point, it can be much more expensive to hire an attorney to try undo your mistake, if that’s even possible.

An attorney can also advise you on the how’s, what’s and when’s in filing for post-minor support, such as what is needed when filing, how to get information about the school’s cost, when the Court will deny a request for contribution to college, etc.

It Won’t Take as Long as You Think

If you’re afraid you don’t have time to take your ex to court and get them to pay up before the bills are due, you don’t have to worry. First of all, that’s why it’s so important for you to file a complaint against your ex as soon as possible – don’t wait until the bills are overdue, and certainly don’t wait until you’ve already paid them before filing, because a judge might perceive that to mean you’ve waived your right to your ex’s help in paying those bills. Also, many times the Court will back-date any Order for post-minor support to the date that you originally filed your motion.

Second, concluding a post-judgment motion (meaning a motion filed after the initial divorce judgment) does not have to take as long as the divorce itself. Unlike many court motions, which can often take months, if not years, to be decided, a post-judgment motion can usually be decided in much less time depending on the case. If it’s a simple matter of your spouse refusing to help pay your child’s education expenses, and you can prove they were made aware of the bills and have refused to contribute, it shouldn’t take a court long to decide the matter. If you don’t have an Order yet for contribution, the process is usually just a matter of exchanging the financial information about each parent’s income and the costs of the school so that the Court can decide whether it is appropriate to make the parents pay for college.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

My Ex Violated Their Restraining Order – What Are My Options?

ex violated their restraining orderWhile a restraining order (or Order of Protection) can offer some protection from those who have been physically and/or emotionally abusive, it’s not fool proof. Those who are restricted by a restraining order often violate the order, and there are few things more frustrating (or more frightening) than when that happens. But a restraining order is still legally binding, so there are ways you can take action in the event your ex violated their restraining order you filed against them.

First make sure you are familiar with the terms of the restraining order. This will give you a step up as soon as your ex violates the order so you can let them (and the authorities) know they are breaking the law.

Call the Police

The first thing you should do any time someone violates a restraining order is call the police. Don’t engage with your ex if you can avoid it, and don’t try to handle the situation yourself. You filed a restraining order for a reason: to get the law on your side, so use it.

Even if your ex does not attack you or get violent in any way, but rather tries to contact you or otherwise violates the “stay away” provision in your order, you should still call the police right away. It’s better than waiting until things do take a turn for the worse, by which time it might be too late to call anyone.

Tell Them about the Restraining Order

When you call the police, tell them you have an active restraining order against your ex and they are in violation of that order. It will help if you have the actual documentation of the order in your possession, since the police will need to verify its existence before they can go further with any proceedings against your ex.

Filing Charges

If you want to file criminal charges against your ex for violating their restraining order, you will need to speak with someone from the police department in the county or city in which the violation occurred. The authorities will then usually refer the case to the prosecutor’s office in your county for purposes of filing criminal charges. In some cases, you can also go to the Courthouse and officials there can help you file a violation petition to help enforce your restraining order, which is one way to take your ex to court.

Violators of an Order of Protection in Illinois can be charged with a misdemeanor, or even a felony, if it’s not their first time violating the order. Depending on the judge’s sentence, that means they can face a hefty fine, or even significant jail time, and it will go on their permanent record. Because orders of protection are issued by a judge in a court of law, judges who see offenders who violated such an order can also hold them in contempt of court, which is a serious offense in its own right.

Tell the Authorities Every Time

Because courts are especially hard on repeat offenders, it’s important to tell the police every single time your ex violates the restraining order. That way, even if you don’t file charges against them the first time, if/when you do decide to do so, there will be a record to prove it’s not the first time they violated the order.

Any time an Illinois judge grants an Order of Protection, it’s an indication that the law is on your side. That is a valuable asset you don’t want to waste, which is why it’s important to keep all documents related to the restraining order and to call the police as soon as your ex violates that order.

If you would like assistance with your Order of Protection, please contact the Law Office of Barbara Sherer. We provide you with expert legal advice while making sure that the outcomes will protect you and your family.

What Not to Do on Social Media During Divorce

Social Media During DivorceMost family law attorneys recommend avoiding social media during divorce altogether because anything you say online can and will be used against you in divorce court – even if it seems harmless at the time you posted it.

That said, if you do decide against a social media hiatus until the divorce is over, here are some things you should absolutely avoid posting on social media:

Announcing Your Divorce

While changing your relationship status on social media is exciting when starting a new relationship, the opposite can just make the break up process worse. Talk to your spouse before announcing the change in your relationship status on social media because no one likes to be blindsided. You may, however, discuss potential ways to announce it together.

In fact, that’s a good rule of thumb to maintain for the entire divorce process. Don’t announce your decision to get divorced. Don’t announce when the divorce has been finalized. And don’t announce your hearing/court dates for your divorce. You may continue talking to and about your friends on social media while you’re getting divorced, but don’t talk about your spouse or your divorce. Which brings us to our next piece of advice:

Badmouthing Your Spouse

The divorce process can be frustrating, and for many of us, our first instinct is to get online to complain about things that annoy us – including our significant other, but that’s a really bad idea when you’re getting divorced.

First of all, no one wants to see that. Many of your friends are probably also friends of your spouse, and seeing you complain about their friend creates some very awkward situations. Keep everyone else out of your divorce by refraining from talking about it on social media.

Second of all, as stated above, anything you say online can and will be used against you in divorce court. Badmouthing the other party looks really bad and can influence the judge against you, not to mention aggravate your spouse and make it less likely they’ll cooperate with you in the divorce process.

Incriminating Yourself

If you’re using your joint bank account to go on a shopping spree, don’t post your haul on social media. Even if you don’t specify where the funds came from, any signs of excessive spending can affect the court’s decision when it comes to any alimony and/or child support to which you’re entitled. Division of marital property and financial assets can also be affected by anything you post online about significant purchases.

Not to mention that social media is often widely accessible, even if you use your privacy settings to prevent anyone other than friends and family from seeing your posts. There are ways a court, an attorney, or a prospective employer can access your social media profile. Any signs of irresponsible spending have the potential to affect, not just your current personal life, but any job prospects or potential romantic relationships you might have in the future.

Speaking of romantic relationships, if you’ve been having any extramarital affairs, don’t ever post anything about them on social media. Even if your spouse already knows about the relationship, posting about it on social media looks really bad in court and has the potential to influence the court against you, especially when it comes to things like alimony, child support, and custody.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What is a Divorce Mediator?

divorce mediatorWhile we’ve all heard horror stories of couples fighting over every single little item in their house when going through a divorce, and while that does happen, it’s not always the case. Many couples mutually agree to end their marriage, in which case they’re both more likely to cooperate in the divorce process (dividing marital property, determining custody and parenting time, etc.) For couples with an amicable divorce who don’t want to pay the fees associated with going to divorce court, there is a more affordable option: divorce mediation.

A divorce mediator is a neutral third party who helps facilitate the divorce and create an agreement that is amenable to both parties. Both spouses meet with the divorce mediator to determine the terms of the divorce agreement and make sure everyone can abide by those terms.

Representation

You don’t need an attorney if you’re using a divorce mediator, but you might still want a qualified family law attorney to help represent your interests in the divorce process. In that case, your attorney would be able to prepare you ahead of time, before you go into your first session with the mediator. This preparation would include explaining the legality of what some or all of your options are, and what those implications would be, if you decided to agree upon that term in the mediation. This is important to be informed on your legal options before entering mediation, as a mediator cannot give you specific legal advice. Rather, the mediator, in addressing you and your spouse together, can only explain in general terms what the law provides.

A common misconception is that a divorce mediator is a judge. This is not the case, as unlike a judge, a divorce mediator won’t make decisions for you and your spouse about who gets what in the divorce. Nor will a mediator examine “evidence” for you and tell you or your spouse who is “right” under the law. Instead, they’ll act as a facilitator to help you both agree on the terms of the divorce. For example, if there’s a piece of marital property or financial asset that you and your spouse both want, a divorce mediator can point out the fact that there might be something else of a similar value that you both want and each partner can get one of those things. Compromise is the name of the game in divorce, as well as in marriage, and a neutral third party can be invaluable in helping both you and your spouse recognize where you can find the potential for compromise.

You Decide Together

Because you and your spouse work together with the mediator to reach a mutually agreeable solution to the dissolution of your marriage, you’re both more likely to abide by the terms of the divorce and avoid conflicts in the future. While going to divorce court might provide an option that settles the matter relatively quickly and efficiently, all decisions are ultimately made for you by the judge. You both have a chance to say your piece, but the final decision is up to the judge, which usually leaves both of you feeling unsatisfied with the result .When that happens, you’re both less likely to abide by the terms of the divorce settlement, and this could end both of you back in divorce court if one spouse sues the other for failing to comply with the terms of the agreement.

Privacy

The other bonus of mediation is that it is completely confidential. Anything that happens in court goes on the record, which is then made publicly available. That can lead to some awkward conversations if a future spouse or potential employer gets their hands on a record of you and your spouse sniping at each other in court. But what happens in mediation stays in mediation. You’re not prohibited from telling your attorney about what happens in mediation, but the attorneys cannot give the Judge any details about what was negotiated, agreed to, or not agreed to with the mediator. Further, the mediator cannot be called to testify in your case about what was discussed in mediation, so this helps to ensure that discussions in mediation are honest, forthright, and productive.

If you’re going through a divorce, and you have children, more likely than not, you will have to attend sessions with a mediator during the process if you and your spouse are not otherwise able to agreed to a Parenting Plan on your own. In Illinois, parents are required to attend mediation for up to four (4) hours in any divorce or contested litigation involving children.   If used properly, mediation can save the parties thousands of dollars in litigation fees, so it is a smart thing to discuss with your spouse if you know divorce is coming.

At Sherer Law Offices, all of our attorneys in the firm are certified mediators in Illinois. So, we have several options for qualified mediators if you’re looking to pursue a more amicable and cost-friendly way to resolve your divorce. Contact us today to set up a time to discuss it.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

When Your Spouse Refuses to Participate in the Divorce Process

Spouse Refuses to Participate in the Divorce ProcessThe best-case scenario for a divorce is an uncontested divorce, in which both parties agree to the dissolution of the marriage and cooperate in the dividing of marital property and determining things like alimony and custody (if necessary). But sometimes one spouse refuses to participate in the divorce process, making it difficult to complete the divorce process.

Contrary to popular belief, you do not need both parties to sign the papers in order to finalize a divorce. All you need is to file a petition for divorce and make sure you can prove your spouse is aware of the petition. Further, you have to be able to show you gave them a chance to respond, and each state has their own time requirements before the Court will find someone in “default.” In Illinois, all contested divorce cases start by serving your spouse with divorce papers. If he or she does not respond within 30 days of receiving your petition for divorce, or otherwise file any motions with the Court, you can ask the Court to find your spouse in default and to set the case for hearing on a default Judgement. If your spouse does not show up to court on the appointed date, the court may decide to grant you a default divorce. By failing to respond or show up to court, your spouse forfeits their right to have a say in the divorce process or judgment.

However, there are some instances in which the spouse cannot be located. So long as you can attest to the Court that you have made all reasonable attempts to locate your spouse, you can get what is known as a publication by divorce, in which you publish notice of you your petition for divorce in the local media outlets of the last known whereabouts of your spouse. Your notice has to run a certain number of times before the Court will accept service by publication, so it’s important to check your local Court Rules or consult with an experienced attorney for the required procedure. If your spouse still doesn’t do not respond within 30 days, most courts will grant a default judgment.

If your spouse did file a response to your petition for divorce, but refuses to participate further in the process, the judge may proceed as though it is an uncontested divorce, but you might have to wait to be assigned a court date. If you get a court date and your spouse fails to appear in court on the appointed day, the judge may enter orders based on the divorce petition and response.

As always, a competent family law attorney can help with this process, as even seeking a default divorce can be stressful since there are specific rules you must follow. If your spouse thinks they can avoid divorce by simply refusing to sign the papers, a letter from your attorney can set them straight. When they see that the divorce can proceed with or without their cooperation, most people will choose to cooperate in the divorce. There are many reasons one might refuse to sign divorce papers, but an experienced family law attorney can usually ensure that the divorce proceeds according to your wishes.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What Can Be Included in A Prenuptial Agreement?

prenuptial agreementNot only is the divorce rate going up these days, but the rate at which couples are signing a prenuptial agreement has also been on the rise.

Although it has long been perceived as a measure to protect the wealthy from gold diggers, spouses of a wider range of incomes are now signing prenuptial agreements as a way to determine how their property will be divided in the event of a divorce. It essentially provides a blueprint for how debts, assets, and other financial matters will be handled within the marital estate if the marriage ends.

Rather than a sign that trust is lacking in the relationship, one could think of a prenuptial agreement as a way to speed up the divorce process and even improve marital happiness by helping spouses avoid disputes over money and property.

Reasons for Getting A Prenuptial Agreement

Spouses generally want to consider signing a prenuptial agreement if they have any personal or otherwise pre-marital property they want to protect from the possibility of getting touched during divorce. This includes any property the person owns, including real estate, a retirement account, and/or their business(es) if they’re a business owner. These agreements can, and often do, involve property the spouses expect they will receive after the date of the marriage, but that both parties agree will remain, for all intents and purposes, that spouse’s sole property.

Children from a prior relationship are also a big motivator for many people to get a prenuptial agreement, as many parents will want to protect any assets or funds the children might inherit. A prenuptial agreement can define what property will belong solely to that spouse and his or her specified beneficiaries.

What Cannot Be Included In A Prenuptial Agreement

While a prenuptial agreement can avoid many of the “classic” disputes people think of during a divorce, a prenuptial agreement cannot determine a party’s obligation for child support. Child support belongs to the child, and the child alone, and as such, public policy in Illinois indicates that it cannot be contracted in advance or given away by a parent. Because children’s financial needs change depending on their age and circumstances, it is impossible to determine ahead of time how much (if any) child support they may need by the time the couple gets divorced, which could be any number of years in the future, if it happens at all. This is the same rationale behind the policy prohibiting spouses in a divorce from entering into an Agreement that no child support will ever be owed to the other parent and/or that a child support amount cannot be modified in the future.

The same goes for custody of children. If a couple does get divorced, a judge will determine what is best for the child at that point in time.

Dividing Marital Property

Any property a person owns prior to getting married is generally considered their personal property, and it will most often be returned to them by a divorce judge even without a prenuptial agreement. To the contrary, property and assets acquired during marriage are presumed to be marital property regardless of how they are titled, and that’s where divorces can get contentious. In order to avoid such a mess, a prenuptial agreement can decide ahead of time how marital property will be divided in the event of a divorce.

Things That Are Commonly Included In Prenuptial Agreements

In addition to protecting personal property, assets, and debts, prenuptial agreements can determine the following:

  • A spouse’s right to use, manage, transfer, sell, or dispose of property during marriage
  • Alimony that will be paid by a spouse after divorce, including the amount and duration of payments
  • A spouse’s right to ownership of death benefits from their partner’s life insurance policy
  • A spouse’s requirement to create a will that will carry out the terms of the agreement; and
  • Which state laws can be applied to the contract in the event of divorce.

Enforceability

A prenuptial agreement is there to give both parties peace of mind, but there are certain requirements the contracts must meet in order to be enforceable in each state. Whichever state’s marriage law you decide will apply to your prenuptial agreement, make sure the contract abides by all of that state’s requirements for prenuptial agreements. The timing and execution of a premarital agreement is also an important consideration, as an agreement made under coercion or duress will be held unenforceable by the Court.

The attorneys at Sherer Law Offices have been providing legal representation for divorce cases, as well as all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.