What Should Be Included In A Prenuptial Agreement?
Whether you should get a prenuptial agreement is an intensely personal matter. Some spouses may want to protect the family business, while others want to protect their premarital real estate.
There is no one correct answer if a prenuptial agreement. Below are some of the provisions that should be in a prenup if decide to have one written. If you are considering such an agreement, the Schaumburg prenuptial agreement lawyers at the Law Office of Fedor Kozlov, P.C., can help you.
Essentials For Your Prenuptial Agreement
There are several critical topics that should be addressed in your Illinois prenuptial agreement to protect your interests:
Assets And Debts Before The Marriage
The prenuptial agreement should address how property and debts you owned before the marriage will be treated during the marriage. For example, if you bought a car before the wedding, will your spouse now jointly own the car? However, if your spouse had a lot of student loan debt before, are they responsible for it during the marriage? Or will both spouses need to pay it off?
Assets And Debts Of The Marriage
In Illinois, anything that the couple acquires during the marriage is marital property. Some examples of marital property include the home, vehicles, and retirement accounts. Illinois is also an equitable division state, so the marital property is not necessarily split evenly if there is a divorce.
So, if there are assets or debts you will accumulate during your marriage, and you want them separate, the prenuptial agreement needs to mention this. The prenup should have an entry that deals with the assets and debts you want to be separate.
The document should define what you expect regarding marital roles and responsibilities. For example, while you cannot mention non-financial obligations, such as who will clean the house, you can describe who will handle the bills and file tax returns. Also, it should mention how you will handle checking and savings accounts and how you will get credit or spend money.
Children From Other Marriages
Your prenuptial agreement should mention children from other marriages or relationships. You might want to state how the children will receive assets or be provided for. For example, what will the inheritances for those children look like? The spouse usually has the initial claim to the estate if the other passes away. So, the prenup should mention there is an inheritance for children from earlier relationships.
What will the two of you do if your work requires you to move to another state? Will one of the spouses stay home and raise the kids? It is wise to clearly define your expectations regarding income and work in the prenup.
Is there any family property, such as antiques or an inheritance that you want to stay on your side of the family? This can be stated in the prenuptial agreement. This ensures that it will pass on to those you wish.
Property Division If There Is Divorce
The prenuptial agreement also may mention how debts and assets are to be divorced if you are divorced. This is especially important if you own a business and want to ensure you keep control of it after a divorce.
What Cannot Be Put Into A Prenuptial Agreement?
Certain things cannot be put in your prenup. If you have questions about any of these provisions, talk to your prenuptial agreement attorney in Chicago:
The prenuptial agreement cannot list anything illegal. However, if it does, it can put the entire agreement at risk of being dismissed or set aside in court.
Child Support And Custody Decisions
A prenuptial agreement cannot mention child custody and support issues. The family court has the last say on how to calculate child support. The court will determine child support according to what is in the child’s best interests, and there are many factors involved.
The court will not uphold your prenup if any part deals with child support, child custody, or visitation. These are public policy matters. The court always keeps the power to decide what is in your child’s best interest.
Provisions That Encourage Divorce
Judges are critical of prenups that have anything in it that offer benefits for divorcing. If the judge reads the provision to encourage divorce, the judge will put it aside. On the other hand, courts tend to view a provision that discusses property division as one that encourages a divorce.
Anything About Personal Matters
The purpose of a prenup is to deal with financial matters if there is a divorce. The document cannot mention who does what in the home or where holidays are spent. There also cannot be anything about how the children are raised.
Judges do not like seeing anything in the prenup that deals with domestic issues. Therefore, it needs to be in another document if you want to agree with your spouse about these matters.
This is an often-struck-down provision for prenups in many states. Some states do not allow any alimony waiver. While alimony rights can be waived in Illinois, the exact language is critical. You may be permitted to waive alimony, limit how long payments are made, and have other provisions about spousal support.
However, the language of this section is essential. The courts will not enforce the provision if it creates an undue hardship for one of the spouses. If you want to put a waiver in your prenup, have your prenuptial attorney review it. For example, if your spouse stays home with the children and does not have his income, alimony should not be eliminated in the prenup. This could create an undue hardship on the spouse who stays home.
More Important Considerations For An Illinois Prenuptial Agreement
There are more things to understand about doing a prenup in Illinois. Consider these points, then talk to a Schaumburg prenup lawyer to determine if such an agreement is right for you:
It’s Not Just About Money
Prenups are not only for the wealthy but are not always about money. Many couples today use them to safeguard intellectual property rights, artistic creations, and even inventions. Of course, not all ideas are worth money, but a prenup can be written to protect ideas and other intangible assets.
Timing Is Critical
Effectively protecting your assets in a divorce means signing your prenup sooner rather than later. If you sign the prenup too close to the wedding, your spouse could argue that she signed under duress. This would nullify the agreement, so allow for plenty of time.
You Need Your Lawyer
Engaged couples may think they can use the same prenup lawyer. However, this is not to your benefit. Just like you want your lawyer during a divorce, you should have your lawyer when writing a prenup. Your prenuptial agreement attorney in Illinois will have your best interests at heart. If necessary, the prenup attorney for each spouse can consult and write the agreement in a way that is fair to both sides.
Can Deal With Death
A prenup can address assets that one person owns if someone passes on. Provisions can be added for other members of the family as well as the spouse.
You should include a full financial disclosure in the prenup. If you do not, it could be overturned if there is a divorce. Worse, you can be punished financially for attempting to hide assets.
Pre-Marital Assets Are Separate
When you write a prenup, remember that each person’s premarital assets are usually not part of things. For example, in a divorce in Illinois, premarital assets are returned to the person who brought them to the marriage.
For example, if your spouse owned a dozen rental properties before the marriage, they would be returned to her if there is a divorce. Even if you have been managing some of the properties during the marriage, they were hers before the marriage. So, they will be hers afterward, too.
In an Illinois divorce, your assets will be equitably divided, not equally. The prenup should reflect this fact. If the document is unfair to your spouse, there is a good chance it will be set aside during a divorce.
That said, what ‘fair’ means is in the eye of the beholder, and every case is different. What you think is fair may seem unfair to someone else. So, you should base the prenup on your marriage circumstances and not on what other people insist is fair.
Alimony Provisions Can Be Included In Illinois, But…
Could alimony be an issue in your divorce? It can be addressed in the prenup, but do it carefully. If the judge thinks the limitations set out in the prenup are too extreme, they may be set aside.
However, you can ensure with your prenup that receiving spouse receives an income. But the amount provided cannot be more than what the other spouse can pay. It also is possible to waive or exclude spousal support in the agreement in Illinois.
Call Our Schaumburg Prenuptial Agreement Lawyer
To ensure a secure marriage, consider a prenuptial agreement. The Schaumburg prenuptial agreement lawyers at the Law Office of Fedor Kozlov, P.C. are ready to assist if you want to set up a prenup. Please contact Our Schaumburg prenuptial agreement lawyers at (847) 241-1299.