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Crystal Lake Family Law Attorneys for Prenups and Divorce Cases

Crystal Lake Family Law Attorneys for Prenups and Divorce Cases

For many people, a prenuptial agreement is thought of as something that is only used by the rich and famous, and the idea of putting terms and conditions on one's marriage may seem tasteless. However, these agreements can provide benefits that apply in a wide variety of situations and for many different types of couples. Before getting married, a couple should consider whether this type of agreement would be appropriate for their situation.

A prenuptial agreement, which is also known as a premarital agreement or prenup, serves as a legal contract between spouses, and it can be used to make decisions about how certain matters will be handled during the marriage and if the marriage ends, including through divorce or the death of one of the spouses. By creating a prenuptial agreement prior to getting married, spouses can address obligations from a prior marriage, protect their financial independence, and take some of the uncertainty and conflict out of a potential divorce.

Requirements for a Prenuptial Agreement

In Illinois, prenuptial agreements are governed by the Illinois Uniform Premarital Agreement Act (750 ILCS 10/1-10/11). A prenup must be created in writing, and it must be signed by both spouses. A prenuptial agreement will not become effective until a couple becomes legally married. If a couple chooses not to get married, any prenuptial agreement they have made will become void. A prenup can also be amended or revoked after a couple's marriage if these changes are made in writing and signed by both spouses.

Before signing a prenuptial agreement, both parties should make a full financial disclosure to each other, including the income they earn, the property they own, and the debts they owe. A party may choose to waive their right to receive financial disclosure, but they must do so in writing.

What Can Be Included in a Prenup?

A premarital agreement may address how certain issues will be handled in the event of divorce, but it can also provide spouses with protections and clarity during their marriage. A prenup may be a helpful tool to clarify the how each spouses existing obligations shall be met, enunciate expectations, and provide mutual ease-of-mind over financial matters. In addition, a prenuptial agreement can help preserve a spouse's financial independence. If a person has worked to build a career in which they are able to support themselves, a prenup may ensure that they will continue to be able to use their financial resources to maintain the lifestyle to which they have become accustomed.

In a prenuptial agreement, a couple can make decisions about the following:

  • Property rights - A prenup may specify each spouse's rights and obligations regarding property owned by either or both spouses, regardless of when it was acquired or where it is located. This includes the right to "buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property."
  • Division of property - A prenup can address how property will be divided between spouses if they choose to end their marriage in divorce, and it can also state what will happen to certain assets or debts if the couple separates, if either spouse dies, or when any other event does or does not occur. Couples may wish to identify certain assets as non-marital property that is owned only by one spouse or as marital property that is subject to equitable division between spouses during divorce.
  • Spousal maintenance - Even if one spouse may be eligible to receive maintenance (also known as spousal support or alimony) in the event of divorce, a prenup can specify the amount or duration of maintenance, or it may eliminate the right to maintenance altogether.
  • Wills and trusts - A prenup can require either spouse to create a will or trust to carry out the provisions of the agreement.
  • Life insurance benefits - A prenup can specify each spouse's ownership rights regarding death benefits from life insurance policies held by either spouse.
  • Choice of law - The prenup can decide which state's laws will apply if any future disputes arise related to the agreement.
  • Other issues - A prenup can include decisions about any other matter that is "not in violation of public policy or a statute imposing a criminal penalty."

Notably, a prenup cannot be used to make decisions about the allocation of parental responsibilities and parenting time for any children the couple share, or about child support obligations for either parent. These matters will be addressed at the time of a couple's divorce or separation, and the decisions will be based on what is in children's best interests and what amount of support is required to meet children's needs.

What Can Make a Prenuptial Agreement Unenforceable?

In most cases, if a prenuptial agreement was executed correctly and signed by both spouses, its terms will be enforceable in a court of law. However, there are some situations in which a prenup may be found to be unenforceable, including:

  • The prenup was not signed voluntarily. A spouse may claim that they were under duress when they signed the agreement. If a prenup was signed within a short period of time before the wedding, this may be seen as a sign that a spouse was under duress.
  • The agreement was unconscionable, or grossly unfair, to one party. In these cases, a spouse must prove all of the following:
    • They did not receive a fair and reasonable disclosure of the other spouse's property and financial obligations before signing the agreement.
    • They did not voluntarily waive their right to receive financial disclosure from the other spouse.
    • They did not have, or they could not reasonably have had, an adequate knowledge of their spouse's property or financial obligations.
  • If a prenup modified or eliminated spousal maintenance, and this would result in one spouse experiencing "undue hardship" because of circumstances that were not reasonably foreseeable when the agreement was signed, a court may choose not to enforce these terms, and spousal support may be awarded that would allow the spouse to avoid the undue hardship.

Contact a McHenry County Prenuptial Agreement Lawyer

A prenup can provide many benefits, both during a couple's marriage and if the possibility of divorce ever enters the picture. A well-crafted premarital agreement can address spouses' concerns about financial issues or obligations during their marriage, and it can protect certain assets in the case of divorce and/or ensure that children from a previous relationship will retain the rights to inherit certain property. Before signing a prenuptial agreement, it is important to consult with an attorney. At Botto Gilbert Lancaster, PC, we can help you draft a prenup that protects your rights and addresses your concerns. If you have any questions about prenuptial agreements, contact our Crystal Lake family law attorneys today at 815-338-3838 to schedule a free consultation.

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