Prenuptial and postnuptial agreements are types of marital agreements that are created either before or during a couple’s marriage. These agreements are much more frequent than they used to be, and much of the stigma around them has dissolved. These agreements provide significant benefits for couples regardless of wealth and do not indicate an oncoming divorce. To ensure you get the most benefits from drafting a prenuptial or postnuptial agreement, you need a skilled Springfield attorney.
A marital agreement allows couples to discuss important financial issues, decide their rights and responsibilities to certain property during marriage, and if they separate, prevent court division of assets and provide each other with more financial security. As long as the marital agreement is considered fair by the court and meets the legal requirements of a contract, it should be enforceable.
Benefits of Creating a Prenuptial or Postnuptial Agreement
There are several benefits to creating a prenuptial or postnuptial agreement. These include:
- Property Rights During a Marriage
Prenuptial and postnuptial agreements can list each spouse’s responsibilities and rights to different property, including deciding if certain assets are considered separate or marital property. If spouses enter a marriage with significantly different levels of wealth and/or debt, this can prevent one spouse from being responsible for significant debt or protect a wealthy spouse’s personal or familial financial security. The agreement can also list traditionally separate assets as marital. - Financial Discussions
The most effective way to create a marital agreement is to work together to discuss the issues, not for one spouse to draft the agreement and give it to the other to sign. One of the great benefits of working together is that it ensures couples talk about important financial matters, improving communication on the matter.
If one spouse has financial security concerns, the agreement can address this, including how they will be taken care of if the couple divorces. Marital agreements can make both parties feel more secure in their marriage. By doing this, it could decrease the likelihood of divorce. - Division of Assets
A marital agreement can determine the division of assets and debts if a couple divorces. This avoids the possibility of the court deciding how assets are divided without requiring spouses to negotiate the division of assets in a more high-stress situation. Without a marital agreement, spouses must either reach an agreement on asset division or be subject to Illinois’s equitable distribution laws. Having a marital agreement can also make the process of divorce much faster and less expensive. - Business Protection
A marital agreement enables spouses to decide what happens to a business if they divorce. If the business is under one spouse’s ownership, the marital agreement can list it as separate property, protecting that business or protecting the other spouse from business debt. The agreement can also determine how that significant asset is offset by providing the other spouse with other benefits. If spouses co-own a business, the marital agreement can address how it is split or otherwise managed. - Inheritance Rights
When one or both spouses have had a prior marriage, a prenuptial agreement can determine how to handle the inheritance rights of ex-spouses and the children of those marriages. Specific property may need to be protected in order for other families to inherit them. - Spousal Maintenance
If spouses wish to determine their own calculations for spousal support or maintenance, they can do this through a marital agreement. Sometimes, spouses can waive their right to support. As long as the support determination is not unconscionable, it is enforceable.
FAQs
Q: Are Prenups Effective in Illinois?
A: Prenuptial agreements are effective in Illinois as long as they adhere to contract law requirements and are not unconscionable. A prenuptial agreement will not be effective if it was entered into by force, fraud, or duress or if either party did not have the legal capacity to sign a document.
If a prenuptial agreement is unconscionable, it means that the court decides the agreement is unreasonably unfair to one spouse, such as leaving them financially unprotected or requiring unreasonable provisions.
Q: What Are the Pitfalls of a Prenuptial Agreement?
A: One pitfall of a prenuptial agreement occurs if the court determines it is invalid and unenforceable. If this occurs, spouses will have wasted significant time and effort on creating the agreement, only to be required to determine the division of assets during their divorce or be subjected to the court’s division of assets.
Additionally, the court will not enforce an unfair agreement, but it can sometimes miss these issues. A prenuptial agreement may be enforced despite favoring one spouse.
Q: How Long Do You Have to Be Married to Get Half of Everything in Illinois?
A: The length of the marriage in an Illinois divorce does impact how property is divided, but there is no goal you must meet in order to get a certain percentage of property. Illinois is an equitable distribution state, which means that marital property is not always divided in half. The court reviews factors including:
- The duration of the marriage
- The contribution of each spouse to the acquisition and upkeep of marital property
- The dissipation of marital assets
Q: Are Postnuptial Agreements Enforceable in Illinois?
A: Yes, a postnuptial agreement can be enforceable in Illinois. The only difference between a prenuptial agreement and a postnuptial agreement is that a postnuptial agreement is made after a couple is married. Otherwise, the same legal requirements apply. A postnuptial agreement may be unenforceable for some of the following reasons:
- It was signed under threat of force
- The agreement is not in writing
- The agreement is not signed by both parties
- Parties did not clearly and completely disclose all assets and debts
- The agreement has unfair and unconscionable terms
Contact Stange Law Firm
When drafting a postnuptial or prenuptial agreement, it is crucial that each party is represented by an attorney. This makes it more likely that the agreement will be found enforceable by the court and ensures that each spouse’s individual rights are protected.
Even if both spouses wish to create a strong and fair agreement, mistakes can still be made that make the agreement unfair. Having effective legal representation can prevent this. Contact Stange Law Firm today to learn how an attorney can protect your financial interests.
