First marriage? Second? Third?
Time to consider a "pre-nup".
Premarital agreements, also known as prenuptial agreements, are
not only fully enforceable under Illinois law, they are actually
favored. Premarital Agreements are no longer the tools of only the
very wealthy. Premarital Agreements are rapidly gaining popularity
throughout all facets of societyy.
Engaged persons enjoy a legally recognized relationship know as
a "confidential relationship". Simply put, engaged persons
have a legal duty to be fair and honest in their dealings with each
other. This is an important point when considering a Prenuptial
Agreement since the duty does not attach for non-engaged persons.
Therefore, the status of your relationship at the time of the preparation
and signing of the agreement may be a critical factor in its enforceability
at a later date.
| Uses and Purposes of Pre Marital Agreements
The intended purposes of most prenuptial agreements are:
1. Estate Planning. In Illinois, the Probate Act entitles
a spouse to renounce a will and claim a significant portion of the
deceased spouse's estate - even if the will sought to disinherit
the spouse and protect the estate for the children. If there are
no children of the deceased spouse and he or she dies without a
will (intestate) the entire estate will pass to the surviving spouse.
If there is no will and the decedent leaves children, the surviving
spouse will inherit one-half of the entire estate and one-half of
the estate is divided among surviving children.
A Premarital Agreement can modify ALLof the above and can
legally prohibit a spouse from claiming his or her statutorily-enforced
share or from inheriting at all under the Illinois laws governing
intestacy. This fact becomes very important where couples marry
later in life or have certain items of property which may have been
in his or her family for years. A Premarital Agreement can require
the making of a will, trust or similar instrument to carry out your
wishes upon your death.
2. Domestic Relations Issues. The rate of divorce in our
society is holding steady at the fifty percent mark. Simply put,
one of two marriages today will end in divorce. The rate of divorce
for second marriages is even higher. We are wealthier and more educated
now than at any time in our history. Premarital Agreements can plan
for an equitable split in the event the marriage fails.
The Illinois Marriage and Dissolution of Marriage Act is the Illinois
statute that governs the applicability of Premarital Agreements
in the event of a divorce. As a general statement, any property
or income acquired during the course of a marriage is considered
marital property and subject to equitable division upon divorce.
A Premarital Agreement allows the parties to designate what would
otherwise be considered marital property as non marital property
-- thereby avoiding distribution upon divorce. This can be especially
important in cases where one owns a business in partnership with
others or where a particular piece of property has been passed down
in your family for generations.
A Prenuptial Agreement can also decide issues of maintenance or
support in the event of divorce. No agreement can abrogate the legal
duty of a spouse to provide support for the other spouse during
the course of the marriage, and the obligation to provide child
support can never be waived through a premarital agreement. However,
certain other issues related to child rearing can be specifically
governed by the terms of a Premarital Agreement.
| Requirements for a Valid Prenuptial Agreement
- Financial Disclosure. Full financial disclosure is required
of both parties to a Premarital Agreement. Do not wait until the
rehearsal dinner to raise the issue of a Premarital Agreement.
- Timeliness. Timeliness is important. Do not wait until
the rehearsal dinner to raise the issue of Premarital Agreement.
Illinois law requires that each party have sufficient time to
review and consider the terms of a proposed Premarital Agreement.
Illinois case law is replete with examples of Premarital Agreements
being invalidated because the parties had insufficient time to
review the document and obtain legal counsel. Generally, one attorney
will draft the agreement and present it to the other party's lawyer
for review. At BRASELTON and MILLARD, we provide both
drafting and review services for those considering a prenuptial
- Other Considerations. Finally, keep in mind that other
legal documents (e.g., wills, trusts, pension plans or insurance
policies) may conflict with the Premarital Agreement and could
lead to costly litigation down the road. Make sure all your beneficiaries
are appropriately designated, and make sure that you prepare a
will that clearly evidences your intent.