110 E. Schiller Street, Suite 320, Elmhurst, IL 60126

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Elmhurst family law attorney for prenuptial agreements

Prenuptial agreements: Are any other legal documents subject to more controversy and misunderstanding? Prenuptial agreements, also called premarital agreements or “prenups,” are legal contracts that a couple signs before getting married. Many people grossly misunderstand the purpose of a prenuptial agreement. They assume that only couples who do not believe in the longevity of their marriage would sign a prenuptial agreement or that prenups are only used by wealthy husbands to prevent their wives from pocketing their wealth.

In reality, drafting a mutually beneficial prenuptial agreement is one of the most responsible and practical steps you can take before getting married. Prenups serve a wide range of purposes, including protecting both spouses’ property rights, avoiding stressful litigation in the event of divorce, and describing how property should be distributed if a spouse passes away.

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IL divorce lawyerThe time leading up to your wedding can be a joyous and happy time, while simultaneously a stressful and overwhelming experience for many people. In the days and months leading up to your wedding, you likely have event planning things on your mind, such as picking out the color of the table linens or making a final determination for the guest list. What many people do not think about before they get married is the financial aspect of things. When you get married to another person, you are suddenly financially intertwined with that person and are subject to things such as property division and spousal support in the event you were to ever get divorced. One way to protect your financial health is by signing a prenuptial agreement before you tie the knot. Prenuptial agreements used to carry a negative social stigma, but more people have begun to see their benefits in the past several years.

Prenuptial Agreements are Becoming More Commonplace Among Couples

Just as Bob Dylan once sang in one of his most famous songs, “the times they are-a changin’,” the marital landscape in the United States is also changing. Not too long ago, many people thought it was unsavory or tacky to get a prenuptial agreement before they were married. After all, why would you make plans for the end of the marriage before the marriage has even begun? In recent years, there has been a surge in interest in prenuptial agreements, especially among younger couples. According to a survey conducted by the American Academy of Matrimonial Lawyers, around 62 percent of lawyers who responded reported that they saw an increase of prenuptial agreements between 2013 and 2016, while about half of them reported that they saw an increase in prenuptial agreements among millennials, specifically.

There are a couple of possible reasons for this surge in prenuptial agreements. First, the divorce rate in the United States has greatly increased over the past couple of decades. Depending on the source you consult, the current divorce rate is anywhere between 40 and 50 percent. Second, people are waiting to get married until they are older and consequently have accumulated more assets and property that they need to protect. The average age of individuals when they go to get married for the first time has increased significantly over the past 50 years. According to the U.S. Census Bureau, the average age a man was first married increased from 23.2 in 1970 to 30.3 in 2019, while the average age of a woman at her first marriage increased from 20.8 to 28.4, respectively.

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Illinois divorce attorney, Illinois family lawyer, IL child custody lawyerWhen a couple decides to get married, they usually agree to share what they own. If the marriage were to end in divorce, the marital estate is divided under the equitable distribution doctrine. Unlike community property states, which divide the couple's assets in a 50/50 division, Illinois law says the couple's assets need to be divided equitably based on certain factors. Some of these factors include:

  • How long the couple was married
  • Each spouse's contribution to the marital estate
  • The value of the assets
  • What each spouse's financial circumstances will be after the divorce
  • Tax implications
  • Whether spousal support will be paid
One factor that usually supersedes all other factors is whether the couple had a valid prenuptial agreement. A prenuptial agreement is a legal contract entered into by the couple prior to the marriage which stipulates how assets and property will be divided in the event the couple divorces. The agreement can also address any outstanding debt the couple has and spousal support/maintenance. Although it is recommended that every couple draw up a prenuptial agreement before the wedding, many couples choose not to. The good news for those couples is that Illinois law also recognizes postnuptial agreements. Postnuptial agreements address the same terms and/or issues that prenuptial agreements do. The only difference is that the agreement is entered into at some point after the couple has married.

Reasons Why Married Couples Choose to Sign a Postnuptial Agreement

In certain marital situations, signing a postnuptial agreement is highly recommended. Typically, postnuptial agreements are established because of the following:

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postnuptial agreement, Elmhurst Family Law AttorneyTypically, when spouses decide to enter into a prenuptial (before marriage) or postnuptial (after marriage) agreement, the question is not whether an agreement is necessary or useful, but whether the agreement is drafted with your best interests in mind. A prenup or postnup is only an efficient tool when it supports your needs and protects your rights— otherwise, you are at risk for wasting a lot of time, energy, and money.

Ensuring a Successful Marital Agreement

Regardless of the type of marital agreement you decide to pursue, ensuring it is a successful one is paramount. The draft you create will determine your lifestyle in the event your marriage takes a turn for the worst, so the boundaries you establish in your agreement hold a significant amount of power. Ask the following questions when determining whether or not your pre or postnup will serve your best interests:

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illinois-prenuptial-agreementThere is an assumption by many that premarital agreements, more commonly known as prenuptial agreements, are only necessary for the extremely wealthy, to preserve a inheritance, or for second marriages. This is not accurate. Especially with the new guideline maintenance laws coming into effect, premarital agreements are extremely important to protect against high maintenance (also known as alimony or spousal support) awards that could end up prejudicing the payor.

For example, starting in January 2015, if a court determines that an award of alimony is appropriate in your case, a husband or wife earning under $250,000 dollars per year could be liable for maintenance to their soon to be ex-spouse for 15 years or more. You could be liable for permanent maintenance. If your spouse does not work, you may end up paying them as much as 40% of your income. This is where a premarital agreement can protect you.

In a premarital agreement, you can create your own alimony guidelines. You can even bar the right of a spouse to receive maintenance under the right circumstances.

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