A prenuptial agreement is a written contract where an engaged couple states their responsibilities and rights concerning premarital and marital debts and assets, and what should happen if their marriage end in divorce or death.
In some states, a prenuptial agreement is also referred to as an "antenuptial agreement," or a "premarital agreement." Sometimes the word "contract" is substituted with "agreement," as in "prenuptial contract." A contract made during the marriage, instead of before, is called a "postmarital," postnuptial," or "marital" agreement.
Discussing a prenup forces couples to communicate their general attitudes towards money, their financial goals, their saving and spending habits, and any accrued debts. And because financial issues are one of the leading causes of divorce, having these discussions before getting married can help build a strong foundation and a long-lasting union.
According to experts, a prenup can be a wise investment, not only because it details a couple’s finances, but because it can mitigate a costly and contentious divorce if the marriage fails. If you and your partner are considering getting a prenup, it's essential to seek legal counsel from an experienced family law lawyer. At Tommalieh Law, our skilled Orland Park divorce attorneys have helped many divorcing spouses reach amicable divorce settlements and we can help you, too. To schedule a no-cost initial consultation, contact our Orland Park family law firm today at 708-232-0017.
How Much Does a Prenuptial Agreement Cost?
A prenup can range anywhere from $1,500 to $10,000, depending on whether the marital estate is incredibly complicated. A divorce attorney can help you draft a simple legal agreement for a flat fee. However, for more complex matters, divorce lawyers will typically charge an hourly rate.
Postnuptial agreements are costly because the spouses are now married, and the marital property has to be considered. The process might seem expensive, annoying, and even unnecessary, however, if there’s a divorce, a well-drafted legal agreement is worth its weight in gold.
Should I Get a Prenuptial Agreement in Illinois?
No one can tell you whether a prenup is right for your situation. Family, friends, and family law attorneys can give you sound advice based on years of experience but ultimately it's up to you and your future spouse. That said, you should consider a prenup if one or more of the following factors is true:
- You own or co-own a family business.
- You might receive a large inheritance.
- You expect to see a significant increase in income.
- One party is much wealthier than the other.
- One party plans to support the other financially through post-secondary education.
- You have or will have a degree or license in a lucrative profession.
- You own your own practice.
- You have valuable property, such as stock options, retirement accounts, real estate, or savings.
- You have loved ones who need a secure financial future.
Who Needs a Prenuptial Agreement?
Contrary to what many people believe, prenups aren't just for the wealthy. While prenups are typically used to protect the separate assets of a wealthy fiancé, spouses of more modest means are increasingly turning to prenups for their own purposes. Here are common reasons that people want a prenup:
- Pass separate property to kids from previous marriages. A married couple with kids from previous marriages may use a prenuptial agreement to spell out what will happen to their separate property when they die so that they can pass on that property to their children and still provide for their spouse, if necessary. Without a prenuptial agreement, a surviving spouse can claim a large portion of the other spouse's separate property, leaving much less for the children from previous marriages.
- Clarify financial rights. Married spouses with or without kids, rich or not, may simply want to clarify their financial responsibilities and rights during the marriage.
- Avoid arguments in the event of divorce. Or they may want to avoid potential disagreements if they ever divorce, by specifying in advance how their separate and marital property would be divided, and whether or not either spouse will receive spousal maintenance. Some states don't allow a spouse to give up their right to spousal support, however, in other states, a waiver of alimony is scrutinized heavily and won't be enforced if the party who is giving up spousal maintenance didn't have a family law lawyer.
- Get protection from debts. Prenuptial agreements can also be used to protect parties from each other's debts, and they may address other family law issues as well.
When Should I Sign A Prenup?
You and your spouse should sign your prenup well in advance of your marriage ceremony--if possible not less than 30 days before the wedding ceremony. Should the prenuptial agreement later be challenged, the family law court will be less likely to question whether one of the spouses entered into the agreement under duress, undue influence, or coercion. Signing a prenuptial agreement in advance makes sure that both parties have had enough time to consider the legal agreement before getting married.
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What Requirements Should be Met for a Prenup to be Held Valid and Legally Enforceable in Illinois?
Typically, for a prenup to be held valid and enforceable by a family law court it must comply with the following requirements:
- The legal agreement must be in writing, signed, and witnessed.
- Both spouses must have provided complete disclosure of all their assets liabilities.
- If spouses have legal representation, each spouse must retain their own separate lawyer to ensure they receive independent legal counsel.
- There can't be any evidence of coercion, duress, or undue influence.
- Provisions between the spouses must be legally permissible.
What Happens If You Don't Sign a Prenuptial Agreement?
If one spouse wants there to be a prenup going into a marriage and the other spouse doesn't, it may be a sign of deeper issues. If it's truly such an essential element before the marriage, it may even be grounds for calling off a marriage.
If your soon-to-be spouse doesn't want to sign a prenuptial agreement, then the party who doesn't want a prenup may also decide to call the engagement off. It's of the utmost importance that you and your soon-to-be spouse are on the same page about the prenup conversation if it's important to you. Many couples find that speaking with a family law attorney is a good way to learn more about the prenuptial agreement process and what it may mean for their marriage.
Someone may not want to sign a prenuptial agreement if they have significantly fewer assets than the other party. They might not want to lose the opportunity to gain some of that wealth or assets in the event of divorce.
By signing a prenuptial agreement, a spouse that doesn't work would then have minimal or no earning potential while signing away their legal rights to potential marital property. Other people view a prenup more personally and get offended and believe that the prenuptial agreement is a sign of a lack of trust. It could be an issue to them that they're having to deal with this issue before getting married and planning for a marriage ceremony which is supposed to be a happy occasion.
If one spouse refuses to sign a prenuptial agreement and the couple still gets divorced, then the standard marriage laws concerning spousal support and equitable distribution of marital property would be applicable. Also, premarital assets would be exempt from equitable distribution as long as it can be proven that the assets were individually owned before the divorce took place.
Contact Tommalieh Law Today To Consult A Family Lawyer
Even if divorcing spouses don't execute a prenuptial agreement, it's always wise to hold onto legal documents showing what each party had when they come into the marriage so that in the case of a divorce, they could show what should be considered premarital property. If your soon-to-be spouse doesn't want to sign a prenuptial agreement, many things can happen. It's wise for you to get in touch with a skilled family law attorney. An experienced divorce attorney can help you fully understand the potential results of these agreements and how to discuss them with your soon-to-be spouse. Call Tommalieh Law Family Law Firm today at 708-232-0017 to get started.