Divorce

Making and Breaking a Prenuptial Agreement in Cook County

Once upon a time, only super-rich couples bothered with premarital agreements. The laws in this area were quite complex, and enforcement results were quite subjective. In other words, an agreement made in Will County might or might not be enforceable in Cook County. But now that the Uniform Premarital and Marital Agreements Act is in force in the Prairie State, things are much different. The UPMAA streamlined laws and procedures. As for enforcement, objective criteria replaced the old case-by-case approach. About half the states in the country have already adopted the UPMAA.

To an Orland Park family law attorney, a premarital agreement is much more than divorce insurance. In addition to reducing the emotional and financial costs associated with divorce, a premarital agreement makes your marriage stronger. This aspect of a prenup, along with the UPMAA streamlining, makes these agreements much more attractive today than they were 20 years ago.

Making a Prenuptial Agreement

Financial provisions usually dominate premarital agreements. Spousal support caps and property classification determinations are the two best examples.

Especially if a wealthy person marries someone without such wealth, spousal support limitations usually improve the situation for everyone. Typically, these limits have stairstep provisions. The longer the marriage lasts, the higher the cap goes. That change reflects both spouses’ emotional investment in the relationship as well as the reality of a different standard of living.

Separating marital from non-marital property is often the most time-consuming portion of a marriage dissolution matter. Premarital agreements could resolve these matters in advance.

Assume Wife acquired a rental house before the marriage. Husband donated his expertise and services as a property manager to significantly enhance the house’s value. Based on these facts, if the couple divorces, the house could be Wife’s nonmarital property, Husband’s nonmarital property, or marital property subject to equitable division.

Inheritance and succession matters usually dominate the emotional issues in a premarital agreement. Normally, children from a first marriage have no inheritance rights following a divorce, and children in a subsequent marriage have no inheritance rights either, unless the spouse adopts them. These issues could be a significant problem in a family business which needs continuity of leadership. A prenup, usually in conjunction with a will, makes these matters clear.

Child custody and child support are about the only off-limits areas. The best interests of the children, and not the best interests of the parents, controls these areas.

Breaking a Prenuptial Agreement

The UPMAA’s enforcement certainty made it more difficult, but certainly not impossible, to successfully challenge an unfair prenuptial agreement. The two major challenge areas are:

• Involuntary: An agreement is involuntary if the person did not fully know what s/he was signing. So, if one spouse withheld critical information, and the information was unavailable elsewhere, the agreement might have been involuntary.
• Unconscionable: There is a difference between unconscionable and uneven. A 65-35 split is uneven. A division like “I get the assets and you get the debts” is unconscionable. Additionally, the agreement must have been unconscionable when it was made. For example, stock certificates could be extremely valuable one day and almost worthless the next day.

Most premarital agreements include severability clauses. If a judge invalidates one portion, the remainder stays in effect.

Connect with a Diligent Lawyer

Today’s premarital agreements are easy to make and difficult to break. For a free consultation with an experienced Orland Park family law attorney, contact SLG Family Law. We have offices throughout Chicagoland.