There 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.
If you are already married, you can enter into a postnuptial agreement. Post-nuptial agreements are likely to become popular in the next few years at the new maintenance statute becomes more widely known.
Many are of the mistaken belief that a premarital agreement is easy to contest and have thrown out. This is not true in Illinois. In Illinois, it is very difficult to contest a valid prenuptial agreement. Provided you follow the following guidelines in creating your pre or post nuptial agreement, your spouse should have a difficult time invalidating the instrument:
- the Agreement was not executed under duress (i.e., involuntarily);
- the Agreement provides a fair and full disclosure of the assets and income of each party;
- the Agreement contemplates undue hardships that may befall a party, unexpectedly, in the future; and
- the Agreement is conscionable (a term defined by the Courts).
Illinois, along with many other States in the United States, follows the Uniform Premarital Agreement Act. For this reason, the case law is very solid on how difficult it is to dismiss a valid prenuptial agreement.
Other areas that can be protected by a premarital or postnuptial agreement in the event of death or divorce include:
- property division;
- the right to dispose of or acquire property during the marriage without making it “marital property”;
- terms of your will or trust;
- beneficiaries to life insurance policies;
- the choice of law governing the construction of the premarital agreement; and
- any other matter that does not violate public policy or criminal laws.
The rights of children to support may not be adversely affected by a prenuptial or postnuptial agreement.
The attorneys at Weiss-Kunz & Oliver, LLC have had experience in both enforcing and invalidating premarital agreements. For any questions related to this topic, please do not hesitate to contact us.