Pre and Postnuptial Agreements Lawyer DuPage & Cook County, IL
Premarital Agreements are also known as Pre-nuptial and Ante-nuptial Agreements and all three names mean the same thing. They are agreements that are made by prospective spouses before their marriage to determine who gets or gives what (alimony and/or property) if the marriage ends in divorce or separation.
They are also extremely effective in protecting the inheritance rights of children. Ante-nuptial Agreements must be in writing and are effective only if and when the marriage actually takes place.
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A PRENUP IS A DIVORCE SETTLEMENT THAT HAPPENS BEFORE THE MARRIAGE.
All lawyers are aware of the century old adage that “you can disinherit your children but you can’t disinherit your spouse.” This would be absolutely true under Illinois law (Probate Act) but a properly prepared premarital agreement can go around the Probate Act to allow one spouse to disinherit the other in favor of any of their children (especially those from a prior marriage).
The Illinois Uniform Premarital Agreement Act governs these agreements. They are fully enforceable if the law is followed carefully.
The Act allows the parties to contract with respect to:
- The rights and obligations to property.
- The right to manage property.
- Disposition of property upon separation, divorce or death.
- A waiver of maintenance, or the modification of maintenance.
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
- Life insurance policies.
- The choice of law governing the construction of the agreement.
- Any other matter, including personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
To ensure that the Agreement will be followed by the divorce or probate court, both parties should have an attorney and negotiations should take place well in advance of the wedding. If both parties have a lawyer, it becomes more difficult for the “victim” spouse to later argue that he or she did not understand the Agreement or that it was entered under duress.
It also doesn’t hurt if the actual signing of the Agreement is videotaped or done in the presence of a certified court reporter. This serves to verify that all of the statutory and case law requirements have been properly addressed including those pertaining to full financial disclosure.
IF ANTE-NUPTIAL AGREEMENTS ARE DRAFTED AND EXECUTED PROPERLY, THEY ARE DEFINITELY EFFECTIVE AND ENFORCEABLE.
Post Nuptial Agreement
What is a Post-Nuptial Agreement?
It seems that everyone has some familiarity with pre-nuptial or ante-nuptial agreements, which are used prior to marriage. Post-nuptial agreements are almost the same thing, but they are entered into AFTER the parties are married. They are limited to the division of property only, and cannot be used to determine spousal or child support.
They are not as common as pre-nuptial agreements. However, they are very helpful to spouses who have not quite yet decided to divorce, but wish to put a particular property issue to rest in case they ever do divorce. Sometimes, that issue is the very cause of the unhappiness in the marriage.
An example of this might be in cases where one spouse owned the marital home prior to the marriage, and the other spouse made all or most of the house payments (or paid for or contributed to the cost of major remodeling) over the many years of their marriage. Whenever the parties quarrel, the property right (or lack thereof) of the non-owner spouse inevitably comes up, and the parties’ find themselves having the same old disagreement. The use of a post-nuptial agreement can give them a way to end this on-going dispute once and for all, without having to get divorced. They can decide now in their post-nuptial agreement exactly what each of their respective rights in and to the equity of the home will be when and if they divorce.
Post-nuptial (just as pre-nuptial) agreements are governed by contract law. They must recite a valid consideration. To put this in plain English, the spouse, in the example above, that owns the home must pay a conscionable sum to the other spouse in order for it to be an enforceable post-nuptial agreement.
As in the case with pre-nuptial agreements, both parties should be represented by their own attorney.