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prenuptial agreement

Why You Need A Prenuptial Agreement

prenuptial agreementGetting married is one of the biggest decisions an individual makes in their life, and while exciting, it can also be scary.  Prenuptial agreements, or prenups, are a beneficial tool to minimize stress  and also safeguard your interests and assets. In recent years, prenup agreements have become increasingly more prominent and the stigma surrounding the documents has lessened. In fact, a recent study found that prenups may actually strengthen relationships because it forces both parties to give a full and honest perspective of their intentions and assets. [1] With financial worries and disagreements being one of the leading causes of divorce, it makes sense to ensure you fully understand your partner’s financial situation prior to marriage. Prenuptial agreements are no longer viewed as a document exclusive to the extremely wealthy, and this may, in part, be responsible for their growing popularity. Regardless of your financial situation, you should have a prenuptial agreement in place before you get married.

WHAT DOES A PRENUP PROTECT?

Prenups can provide a couple comfort in knowing that certain decisions regarding property are contractually settled. Although prenups can offer certainty and understanding for some aspects of a couple’s life, there is often confusion over what a prenup can and cannot do. The following list is a few examples of what may be included in a prenup agreement:

  • whether one spouse pays the other alimony after divorce, including the amount and duration of payments;
  • each spouse’s ownership of property upon divorce;
  • each spouse’s rights to use, sell, transfer, manage or dispose of property;
  • either spouse’s obligation to create a will to carry out the terms of the agreement;
  • either spouse’s ownership rights in the death benefit from a spouse’s life insurance policy
  • which state’s law will apply to the agreement in case of a dispute; and
  • any other matter for which two people can legally contract. [2]

As the above list indicates, a prenuptial agreement can give guidance in decisions regarding the allocation of property and assets. This allows each spouse to have a clear understanding of how their separate estates and the marital estate would be divided if needed.

Prenuptial agreements cannot be used to eliminate the responsibility of parents to provide support for a child. Even if a provision is included in a prenup which seems to limit a party’s right to collect child support, the court will refuse to enforce such limitation. Illinois courts consider child support as funds owed to the child, rather than the other parent, which prevents parties from refusing to uphold support obligations. [3]  Furthermore, a prenup agreement cannot predetermine a parenting arrangement. This is because when determining how to allocate parenting time between two parties, Illinois courts examine what decision would be in the best interest of the child at the time.  [4]

WHEN IS A PRENUP ENFORCEABLE?

Illinois has adopted the Uniform Premarital Agreement Act which offers guidelines for drafting a prenuptial agreement. Like most legal agreements, prenuptial agreements have to meet a number of requirements to be considered legal and binding by the Illinois courts. [5]   For example,  all prenuptial agreements must be contained in writing and have the signatures of both parties. Additionally, prenups must divide the assets in a manner so that neither spouse would require government assistance if the terms were enforced. [6] Even if these requirements are followed, and a prenuptial agreement is entered, the court will examine if any fraud, duress, or unconscionability exists in the circumstances surrounding the  creation of the prenup. If any of these elements are determined to be present the court may determine that the prenup is unenforceable. Below are examples of behaviors that Illinois courts have decided represent fraud, duress, and unconscionability [7].

Prenuptial agreements are complex legal documents that, if drafted correctly, can offer extensive protection to an individual and comfort to a couple.  Whether you are entering into a prenuptial agreement or trying to enforce or challenge one during a divorce, you should consult an attorney to make sure your specific rights are protected.

If you have any questions regarding prenuptial agreements, or other family law matters, contact Sherer Law Offices at (618) 692-6656 for more information.

[1] https://www.forbes.com/sites/heatherlocus/2018/09/23/why-prenuptial-and-postnuptial-agreements-lead-to-stronger-marriages-and-prevent-disastrous-divorces/#3ffdb2406488

[2] https://www.divorcenet.com/resources/prenuptial-agreements-illinois.html

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] https://www.oflaherty-law.com/learn-about-law/illinois-prenuptial-agreements-explained

 

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