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. 

5 Myths About A Prenuptial Agreement Debunked

Prenuptial Agreement Definedprenuptial agreement

Prenuptial agreement is defined as an agreement between two parties who intend to marry, and basically outlines how the couple will manage assets, debts and other financial aspects during the marriage and in the event the couple splits. The agreement goes into effect the day the couple is married.

Reasons for a Prenuptial Agreement

Prenuptial agreements can actually assist a couple to avoid disputes over property and can potentially remove some financial stress by protecting individual retirement accounts and/or business or property owned by each individual. If a divorce occurs, a prenuptial agreement can protect those assets from potential division as well as protect inheritances of children from a previous marriage.

Now that we know what a prenuptial is and how it can benefit those who engage it, let’s review some myths that evolve around this growing popular decision.

Myth No.1: Prenuptial agreements are expensive and are only for people with a lot of money. Considering the stress of divorce, and how often relationships end in divorce, as well as increasing financial sophistication and independence of many people, a prenuptial agreement can benefit anyone who plans to marry.

Myth No. 2: Prenuptial agreements are only useful if there is a divorce. Prenuptial agreements are useful estate planning tools as well. A prenuptial agreement can be especially helpful if you have children from a previous marriage or have family heirlooms that you want to keep in the family.

Myth No. 3: Prenuptial agreements are not romantic. The ability to discuss with your partner your future financial plans and expectations for each individual, along with relationship goals, generally leads to a more stable relationship than if one spouse expects the other to solely take care of the finances and planning.

Myth No. 4: The courts do not uphold prenuptial agreements. At times, courts do invalidate these agreements, and in most cases these agreements are those prepared without an attorney, or those that were manipulated by one partner over another. By creating a legitimate prenuptial agreement drafted by an attorney, you can be confident that the prenuptial agreement will be acknowledged by the Court.

Myth No. 5: Only the financially successful partner wants a prenuptial agreement. Prenuptial agreements are used to set expectations for the relationship. A prenuptial agreement, for example, can include a provision to compensate a partner for an interruption in a career through spousal support, so that one parent can care for the children during maternity leave.

A Guide to Prenuptial Agreements in Illinois

Prenuptial agreements in Illinois can include the following options:

  • Alimony, with an outline of amount and duration of payment
  • Dispersal of property at the time of divorce
  • Plan of dispersal of property
  • Create a will that will be carried out upon divorce
  • Death benefits from each spouse’s life insurance policy
  • Which state law that will apply to the agreement in case of a dispute
  • Any other matter that is chosen to be contracted

Either spouse can amend or revoke a prenuptial agreement at any time after marriage. The amendment or revocation must be a written document and signed by both partners.

Many times when deciding what is accurate and lawful about issues such as a prenuptial agreement can be difficult and something that you may not wish to do prior to one of the happiest days of your life. However, if you want assistance with understanding the laws about Prenuptial Agreements in Illinois and find out if this financially sound decision is right for you and your soon-to-be spouse, please contact our attorneys at Sherer Law Offices. We provide you with the most recent information and guidance throughout any Prenuptial Agreement procedure and will address legal concerns you may have as you make your marriage plans.