Prenuptial Agreements: What exactly is a prenup and do I need one?

Prenuptial Agreements: What exactly is a prenup and do I need one?

Are you planning a wedding? You may not be thinking about a prenuptial agreement when you are focused on planning your joyful day and thinking about love and happiness. However, a prenuptial agreement may be part of your future planning with your spouse, and it is so much more than thinking about divorce. In fact, you may have seen blogs or articles about topics to discuss with your significant other before getting married. One major topic is finances—and not just how much your significant other makes, but also, how they spend their money and what they are bringing to the marriage financially, both in assets and debts. Negotiating and drafting a prenuptial agreement facilitates couples having discussions about finances before marriage and will provide for a much more secure marriage.

Ok, so what exactly is a prenuptial agreement?

A prenuptial agreement is a contract which determines issues such as spousal support and the ownership and use of assets both during a marriage and in the event of a divorce or even the death of one spouse. If you do not have a prenuptial agreement, your divorce will get decided based on the laws in your state. In Illinois, that is the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) If you move to a different state and get divorced in that state, you may be subject to an entirely different set of divorce rules. A prenuptial agreement is a great way to set the rules you will follow in the event of a divorce and can also determine the laws of which state you will follow in the event of a divorce.

Why do I need a prenuptial agreement?

There are many reasons for a prenuptial agreement. Here are some common reasons:

  • One person is wealthier and has more assets. Typically people think a prenuptial agreement only protects the person with more money, but it very likely protects the person with fewer assets too. Of course, the person who is bringing more wealth into the marriage wants to protect their assets, but also, those assets are likely to be used to create a standard of living that will be gone in the event of a divorce. The person with fewer assets can be protected so that standard of living doesn’t disappear in the event of a divorce.
  • One person has been divorced before. Divorces can be messy, stressful and expensive. One person may want to avoid what happened in their previous marriage and create a plan so in the event of a divorce, things proceed much more smoothly.
  • One person may have children from a previous relationship. A prenuptial agreement can protect assets so you can pass those on to your children in the event that you die during your marriage without a will.
  • One person may own a business. Mixing business and family can be messy and a divorce can be detrimental to a business. A prenuptial agreement can protect a business and can also allow for a business owner to manage a business during the marriage separately from the marital finances.
  • Both parties want to keep finances separate. This is a very common reason in today’s world. Many people are delaying marriage until they are older and they may have decided with their partner to maintain separate finances. While parties may be agreeable in the event of a divorce to keep their separate assets, things change and not having this agreement secured in a prenuptial agreement can cause problems in the event of a divorce.

What can’t be included in a prenuptial agreement?

What cannot be included in a prenuptial agreement differs from state to state. In Illinois, you cannot contract issues such as child custody or child support. A good family law attorney can assist in making sure you and your children are protected in a prenuptial agreement in different ways, but a Court will not enforce any provisions about child support or custody (now called allocation of parental responsibilities in Illinois). Including terms such as these can potentially cause the entire prenuptial agreement to be invalid, so it’s best to talk with a good family law attorney.

Do I need an attorney to draft a prenuptial agreement?

Technically, no. Generally, so long as your agreement meets the legal requirements of a contract and is signed voluntarily and with full disclosure, you may be fine. If the goal is to make the contract as secure and clear as possible, having an attorney draft one is best. As divorce attorneys, we’ve seen divorces become more complicated by poorly drafted prenuptial agreements. An unclear prenup or potentially unenforceable prenuptial agreement, can definitely make a divorce more expensive.

Contact an attorney at Reed, Centracchio & Associates for a consultation to discuss your options and plan for a strong marriage. Are you already married, and you regret not signing a prenuptial agreement? Talk to an attorney about a post-nuptial agreement.

As a reminder, nothing in this blog is intended to be legal advice. Be sure to talk with an attorney about the specific facts of your case.

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