Considering Making a Premarital Agreement Before Getting Married in Illinois?
While raising the idea of a premarital agreement, or “prenup,” can be uncomfortable, these contracts can in fact protect the interests of both parties prior to marriage. There are good reasons to create a premarital agreement that have nothing to do with planning for an eventual divorce. The following are considerations in favor of creating a premarital agreement, and issues to keep in mind when doing so.
As people marry at an older average age, they marry after having accrued greater wealth and more valuable assets. A premarital agreement can be a useful tool in ensuring that separate assets don’t become marital assets, and that, if one of the spouses enters the marriage having already established a small business, their interest in that business remains separate property. For those entering a second marriage, a prenuptial agreement can be a convenient way to spell out a spouse’s wishes upon death. For instance, a premarital agreement can make clear that a spouse wishes for a portion of their estate to go to their children from a previous relationship, rather than to their surviving spouse.
A premarital agreement can also make an eventual divorce faster and much less expensive by agreeing to many terms in advance. The prenup can outline the amount of spousal maintenance, also known as alimony, to be paid, and how long it will last. But, if maintenance is so limited that the spouse receiving maintenance payments would experience undue hardship after the divorce (which typically means that the person would be very poor), then a court may intervene to increase maintenance to eliminate the hardship.
Requirements for a valid Prenup in Illinois
In order for your agreement to eventually hold up in court, it’s crucial that you find an experienced and thorough family law attorney to create the agreement. In Illinois, if a court finds that a prenuptial agreement was unconscionable when it was entered, then its terms won’t be enforced, and the standard state law on division of marital property and payment of alimony will apply instead. An agreement may be considered unconscionable where it is far more favorable to one party than another, or where one party had no meaningful choice when entering the agreement. Parties also must make a full disclosure of their finances before entering such an agreement, in order for it to be enforceable, and both parties must be represented by an attorney.
If you and your future spouse are considering a premarital agreement, contact a family law attorney well in advance of your wedding to ensure you have sufficient time to make all necessary disclosures, and to reach a set of terms that will leave all parties feeling secure. Contact Chicago-area family law attorney John Fairman for a consultation on your premarital agreement questions, at 708-799-4848.