Premarital and Post-nuptial Agreements

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A Premarital Agreement, also commonly referred to as a Prenuptial or Antenuptial Agreement, is a legally binding contract, entered into by parties before their marriage, that defines what will happen when the marriage ends, either by dissolution or the death of one of the parties. A Postnuptial Agreement is an agreement that parties enter into after they are married when they wish to provide for a specific division of assets or the fulfillment of certain obligations in the event of dissolution of marriage or death. Both types of marital agreements allow parties to sort through financial issues so that each has a clear understanding and expectation concerning their financial rights and obligations.

Premarital Agreements can also be used to protect financial interests if one spouse has substantial wealth or disproportionate wealth relative to the other spouse. While the law in Illinois allows for the creation and maintenance of separate property, known in Illinois as non-marital property, events during a marriage may change the character of property. What is recognized as non-marital property at the time of a marriage may become marital property by the time of a divorce or death. Further, a party’s residence may change many times during the course of a marriage and what is deemed non-marital property in Illinois may be very different from what another state recognizes as non-marital property. One way to insure that non-marital property remains the sole property of the owner is with a properly drafted pre-marital or post-marital agreement.

A pre- or post-marital agreement can also be invaluable in protecting family-owned interests, such as a share in the family business, or future inheritances. Without such an agreement, the possibility remains that a business or professional practice may be divided or diluted in the event of a divorce. A marital agreement can also be used to limit liability for debt obligations that a spouse brings to or incurs during the marriage and can set or limit spousal support, known in Illinois as maintenance.

In 1990, Illinois adopted the Uniform Premarital Agreement Act, which makes it very difficult to invalidate a properly drafted pre-marital agreement. With very limited exceptions, the courts will uphold and enforce pre-marital agreements, including spousal waivers of support. Perhaps the greatest benefit of a well drafted pre- or post-marital agreement is the reduction of the financial and emotional cost that can accompany a contested divorce.

Parties contemplating pre- or postmarital agreements need an Illinois divorce lawyer who understands the delicate balance necessary to preserve the parties’ personal relationship before or after the marriage when negotiating for the financial results the parties seek to achieve. Schiller DuCanto & Fleck LLP has Chicago divorce attorneys with extensive experience in negotiating a favorable financial settlement while preserving the parties’ relationship.

 

 

 

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