Marital agreements have long had a negative perception, although this has been shifting in recent years. These agreements allow couples to determine their rights and responsibilities to property and discuss essential financial elements of their relationship. When done right, there are benefits for both parties and their families. An experienced Metro East, IL, pre and postnuptial agreement attorney can help couples draft an agreement that addresses their needs.
Marital agreements include prenuptial and postnuptial agreements. Understanding the reality of these contracts can help couples decide for themselves whether they might benefit from a marital agreement.
Myth: Requesting a Prenup Means You Have a Relationship That Will Fail
Suggesting that you and your partner get a prenup does not mean that you expect your marriage to fail or that you don’t trust your partner. In reality, a prenup allows both parties to be more open and honest with each other, demonstrating a lot of trust.
Discussing the necessary financial issues can help strengthen a couple’s relationship. Being able to reach solutions about financial concerns also speaks to a good relationship where both parties are able and willing to communicate and compromise.
A spouse that has a lower earning capacity or fewer resources may have their financial concerns assuaged, letting them know they will be cared for in a divorce. This can lead to spouses feeling more comfortable and certain in the present.
Myth: Prenuptial Agreements Are Not Enforced by Courts
Marital agreements are nearly always enforced by the court as long as the agreement meets basic contract law requirements and does not violate public policy. In order to be valid, a marital agreement must typically be:
- In writing
- Signed by both spouses who have the legal capacity to do so
- Created and signed voluntarily
The agreement also cannot be unreasonably unfair to either spouse, and both spouses must disclose their financial circumstances. The court will enforce a marital agreement as long as it meets these legal guidelines.
Myth: You Don’t Need a Lawyer to Draft a Prenup
While you are not legally required to work with legal counsel, it is crucial that you do so. Parties may want to mediate their agreement with an attorney-mediator present, or they may each want to be represented by their own attorney. This second option provides stronger protection, as each spouse’s attorney will be looking out for their rights and interests.
Working with legal representation makes the agreement more likely to be fair and less likely to be invalidated or cause hardship to either spouse.
Myth: Marital Agreements Only Address Divorce Issues
Prenuptial and postnuptial agreements do more than cover the division of assets and debts during a divorce. While that is an important part of the agreement, they also determine each spouse’s rights and responsibilities to that property while they are married. It also addresses other life changes, like the death of either spouse. Marital agreements can help couples begin their estate plan.
Myth: You Only Need a Pre or Postnuptial Agreement if You’re Wealthy
Marital agreements can benefit both spouses when they are done right, regardless of their relative wealth. They are especially useful for those with complex family circumstances or who own a business. These agreements can help any couple avoid a lengthy divorce process, regardless of wealth.
Myth: Marital Agreements Are Always Unfair to One Spouse
When a prenup is properly created, it involves both spouses cooperating to create an arrangement that is beneficial to them both, and their attorneys ensure their individual rights are protected.
The idea of unfair prenups comes from the image of one spouse presenting the other with a ready-made agreement to sign without discussion. This form of agreement does not provide the benefits of a marital agreement and is often unfair. When couples work together, agreements are more likely to be helpful for both of them.
Myth: Prenups Are Too Expensive
Marital agreements can be costly, but in reality, getting a prenuptial agreement can save you money in the event of a divorce. As long as the agreement is enforceable, couples can avoid the long process of dividing assets.
FAQs
Q: Does Illinois Honor Prenups?
A: Yes, Illinois generally honors prenups. Typically, a prenuptial or postnuptial agreement must meet the following criteria:
- Both parties have the testamentary capacity to sign and voluntarily sign the agreement
- The agreement is in writing
- The terms of the agreement are not unconscionable and do not put one spouse in financial hardship
- Parties disclose all assets and debts before agreeing on the prenup
The most effective way to create a prenup that is legally valid and will be upheld by the court is to work with an experienced attorney when drafting the agreement.
Q: What Voids a Prenup in Illinois?
A: A prenup could be voided in Illinois for a number of reasons, including:
- Either spouse hid assets or debts, and the other spouse could not have known that information
- A spouse signed the agreement under duress or threat
- The marital agreement includes terms that are illegal or egregiously unfair
- A spouse did not have the legal capability to sign the agreement, such as being under age or under the influence
When the court invalidates aspects of a marital agreement, it may void just that provision or the entire agreement.
Q: Are Postnuptial Agreements Enforceable in Illinois?
A: Yes, postnuptial agreements are enforceable in Illinois as long as they follow contract law and public policy. A postnuptial agreement is essentially the same as a prenuptial agreement, except it is made after a couple is already married.
Spouses may want to create a postnuptial agreement because of financial changes in their lives, including starting a business or buying a home. The court will typically enforce a postnuptial agreement as long as it is not unfair to either spouse and it meets other basic requirements.
Q: Does Cheating Override a Prenup?
A: No, cheating does not typically override a prenup unless there is a clause that states the contract is invalid if a spouse cheats, but this is often not upheld in court. Marital agreements are meant to address financial matters, and cheating is not a legal reason for the agreement to be void. Courts tend to frown on personal wishes.
Decide What Is Right for Your Marriage With Stange Law Firm
A marital agreement could help partners work out important financial issues and better protect their futures. Contact Stange Law Firm to see how we can help.
