Protect Your Future With A Prenuptial Or A Postnuptial Agreement

As you plan your future, a wise thing to do would be to consider each and every eventuality. A prenuptial or a postnuptial agreement can guarantee that both you and your spouse are covered no matter what happens in life. At Buchmiller Family Law, LLC, we help couples throughout Illinois prepare fair and enforceable agreements that bring peace of mind. Whether you are engaged or married, we are here to help you understand your options and develop an agreement that works for both of you.

Our law firm represents clients in Belleville, and throughout the Illinois counties of St. Clair, Madison, Monroe, Randolph, Washington, and Clinton counties. When you’re ready to take the next step, our firm is only a phone call away.

What Are Prenuptial And Postnuptial Agreements?

Prenuptial Agreements (Premarital Agreement)

A prenuptial agreement is a legally binding contract between two people before they get married. It provides different conditions in regard to property, assets, debts, and other financial liabilities in the case of divorce, separation, or death. Prenuptial agreements in Illinois are controlled under the Illinois Uniform Premarital Agreement Act 750 ILCS 10. This means a prenuptial agreement has to be in writing for it to be enforceable and signed by the parties who enter into such an agreement.

Postnuptial Agreements

A postnuptial agreement is similar in nature to a prenuptial agreement but is entered after the event of marriage has occurred. These agreements also provide for the management of assets, property, and debts in the case of the dissolution of the marriage. The legality of postnuptial agreements is recognized under law in Illinois. They must be in the same form as prenuptial agreements, in writing, and signed by both spouses to be valid. These are ideal agreements for married individuals who did not have a prenuptial agreement at the time of marriage but would like to outline financial responsibilities now.

When Prenuptial & Postnuptial Agreements Come In Handy

Protecting Premarital Assets

If either you or your spouse have significant property before marriage, these agreements will enable you to ensure that a pre- or post- marital asset remains separate in case of divorce. Under Illinois law, you are entitled to define what constitutes “separate property” in your prenuptial or postnuptial agreement. Things you might specify include, but are not limited to, family businesses, real estate, retirement accounts, or even that prize collection of comic books. Unless an agreement was reached, those assets would become “marital property” subject to division in the event of a divorce.

Defining Property Division

By Illinois law, marital property is divided by “equitable distribution” in the event of a divorce. That does not necessarily mean 50-50; it means whatever the court considers fair. By prenuptial or postnuptial agreement, you and your spouse may both determine how property and assets are to be divided and thus eliminate some of the unknowns left to the discretion of the court.

Debt Protection

A prenuptial or postnuptial agreement can also help sort out whose debt is whose, in case one spouse enters the marriage with substantial amounts of debt or a lot of debt is accrued by either of you during the course of the marriage. Because you’ve set terms to the contrary, you won’t be held liable for your spouse’s debts should your marriage end.

Providing For Children From Previous Relationships

If you have children from a prior relationship, a prenuptial or a postnuptial agreement can protect their inheritance by permitting you to retain certain assets for them specifically. Illinois law allows you, via prenuptial and postnuptial agreements, to decide on property distribution upon death with the goal of giving your children from the prior marriage or relationship some financial security.

Alimony/Spousal Maintenance

Spousal maintenance, also known as alimony, is one of the most disputed issues in divorce cases in Illinois. The terms can be provided within a prenuptial or postnuptial agreement, with a waiver included, so long as such terms are fair and reasonable. Under Illinois law, it is provided that the courts will not enforce a spousal maintenance provision that is unconscionable at the time of enforcement; thus, the agreement must not leave one party at a severe financial disadvantage.

Protection Of Business Ownership

Prenuptial and postnuptial agreements can include a plan for how the business will be affected should a divorce occur in the case of a business owned by either spouse. Without a prenuptial or postnuptial agreement, on the other hand, a business may well be deemed to be marital property and divided as such. You can also provide for an agreement that allows you to keep the business whole and intact and continue in your ownership, preserving your livelihood and, if applicable, the interests of your co-owners in the business.

Key Legal Considerations Under Illinois Law

Full Financial Disclosure

If a prenuptial or postnuptial agreement is to be enforced under Illinois law, then full disclosure of the financial situation of both parties must be made prior to signature. This would include all assets, debts, income, and expenses. If one spouse does not disclose all relevant financial information, the entire agreement can be invalidated at a later time.

Voluntary Execution

The agreement must be entered into voluntarily by the parties. If it can be shown that one spouse was forcibly compelled to sign an agreement or was under duress at the time they executed an agreement, an Illinois court may declare the agreement unenforceable.

Unconscionability

Unconscionability at the Time of Enforcement A prenuptial or postnuptial agreement will not be enforced in Illinois if it is unconscionable at the time of enforcement. This means it cannot be patently so unfair that its enforcement would leave a party in utter financial hard times. To ensure the agreement remains fair, the court, at the time of enforcement, considers the present financial status of the parties and any changes in their respective circumstances.

Prenuptial and postnuptial agreements may be modified or revoked after they have been signed, provided the modification or revocation is in writing and executed by both spouses. Circumstances may change after making an agreement; hence, there is a need to go back to your agreement and make sure it still reflects your current situation. The State of Illinois law allows flexibility as long as both parties agree to the modification.

Frequently Asked Questions About Prenuptial And Postnuptial Agreements In Illinois

Are Prenuptial Agreements Enforceable In Illinois?

Yes, prenuptial agreements are enforceable in Illinois provided they meet the requirements set forth in the Illinois Uniform Premarital Agreement Act, 750 ILCS 10, which includes being in writing, signed by the parties, and created voluntarily with full financial disclosure.

Can A Postnuptial Agreement Protect The Assets I Acquired During My Marriage?

A postnuptial agreement can protect assets acquired during marriage by detailing what assets comprise separate and which comprise marital. This would make sure the personal properties are protected should your marriage end up in divorce.

Can We Address Child Custody Or Child Support In A Prenuptial Or Postnuptial Agreement?

No, under Illinois law, couples may not by prenuptial or postnuptial agreement pre-determine child custody or child support issues. Such issues are always resolved at the time a dissolution of marriage is obtained, based on what is in the best interests of the child.

What If We Don’t Have A Pre-Nuptial Or Post-Nuptial Agreement?

In the absence of a prenuptial or postnuptial agreement, the courts of Illinois will divide your marital property according to the theory of equitable distribution, which can result in many results that you might not want to happen. The more control you have over how your assets will be treated in a divorce, the more you are accorded by an agreement.

Can We Waive Spousal Maintenance In A Prenuptial Or Postnuptial Agreement?

Yes, one can provide for a waiver of spousal maintenance in a prenuptial or postnuptial agreement. However, the waiver must be fair, and the courts of Illinois may decline to enforce such a waiver if it is unconscionable at the time of enforcement.

Call Our Belleville Prenuptial And Postnuptial Agreement Attorney For Your Free Consultation

Whether you are considering marriage, or currently married, a prenuptial or postnuptial agreement can provide you with protection of your financial future. Our attorneys are happy to educate you about your options under Illinois law and create an agreement that works for you. From asset protection and dealing with debt to planning for children’s futures, we will make sure your agreement is fair and will stand up in court. Call our prenuptial and postnuptial agreement attorney at Buchmiller Family Law, LLC, at 618-432-1866 to receive your free 15-minute telephone consultation.