An Illinois marital agreement can help an engaged or married couple protect their assets, discuss financial needs, and determine asset division. They include prenuptial and postnuptial agreements. These are legal agreements that many believe are used only by wealthy couples or individuals, but they can be helpful to anyone. These agreements can determine inheritance rights, protect certain assets in divorce, and prevent property from being divided by the court’s discretion. It’s useful to work with an attorney while creating any marital agreement to ensure it will be legally enforceable and that the rights of both parties are protected.
Prenuptial and Postnuptial Agreements
Prenuptial and postnuptial agreements are both agreements made by couples that determine each person’s rights to marital and separate property. Prenuptial agreements are more well-known and must be entered into prior to marriage. The agreement is only enforceable once the couple becomes married. A postnuptial agreement is created after a couple is married.
Both agreements can provide the same rights, responsibilities, and benefits. If one party or both enters into a marriage with significant assets to protect, a prenuptial agreement may be appropriate. A postnuptial agreement is most useful if a couple has gone through a significant change in their lives which means a prenuptial agreement no longer fits their circumstances. If one spouse opens a business during a marriage, a postnuptial agreement can help the couple determine in advance how that business would be handled during divorce.
Benefits of Marital Agreements
There are several benefits of a marital agreement. They include:
- Protecting individual wealth and providing financial security. When one or both parties have a business, real estate, or significant retirement account savings, a marital agreement can ensure those assets are kept separate. If one party has received a large inheritance, a martial agreement can determine if this is separate or marital property. This can help couples maintain financial stability and safeguard individual assets.
- Determining the division of assets if a couple divorces and safeguarding assets. If a married couple divorces, they can decide how their assets are split if they go through mediation or negotiation. However, if they are unable to come to an agreement for their divorce, the court handles the divorce. The division of assets is no longer up to the couple. A marital agreement has a pre-made division of assets that the couple follows if they get divorced.
- Protecting a business or protecting a spouse from business liabilities. A business comes with several risks. If a couple gets a divorce, the spouse who does not own the business may want a portion of the business during the separation of assets. A marital agreement can help couples determine this beforehand. A business can also come with significant risk to marital property. A marital agreement can protect marital property if the business has significant debts.
- Deciding on spousal maintenance or alimony in case of divorce. A couple can determine spousal maintenance outside of the typical formula through a marital agreement. The court will uphold this during a divorce unless it is significantly unfair or otherwise invalid.
- Discussing important financial aspects of marriage. Though many people believe that a prenuptial or postnuptial agreement makes a couple more likely to divorce, this isn’t always the case. These agreements allow couples to discuss important financial issues and obtain a sense of financial security. Because couples know what will happen if they divorce, they have more security in the future and are happier in marriage. It also allows couples to openly discuss very important but hard-to-discuss issues.
What Can an Illinois Marital Agreement Address?
A marital agreement can address:
- Each party’s right to property, including their ability to own, use, manage, and sell that property.
- The payment or waiver of spousal support after a divorce.
- Rights to certain policies, property, or assets if one spouse dies.
- Modifications to estate plans like wills and trusts to include marital agreement provisions.
FAQs
Q: How Is Marital Property Divided in Illinois?
A: Illinois is an equitable distribution state. All marital property is divided equitably and fairly rather than evenly. Property could be split 50/50, but it doesn’t have to be. The court will look at several factors about a couple’s marriage to determine what a fair split of assets is. If spouses have a legally valid marital agreement or settle their divorce outside of court, they are not required to follow equitable distribution laws.
Q: What Makes a Marital Agreement Invalid in Illinois?
A: A marital agreement would be legally invalid if:
- One party was coerced or forced to sign the agreement under duress or threat of force;
- The marital agreement includes grossly unfair terms that benefit only one party at significant harm to the other party;
- The agreement includes terms relating to child custody or support, which could invalidate parts or all of the agreement;
- The agreement was not put in writing and signed by both parties; or
- There was no complete and clear disclosure of all assets, debts, and finances between both parties.
Q: What Is the Difference Between Marital and Non-Marital Property in Illinois?
A: Marital property in Illinois is any property gained during a couple’s marriage. Non-marital, or separate property, is any property gained before marriage or after separation. Separate property also includes inheritance or gifts given to one spouse, the increase of value in a separate asset, property gained with a separate asset, and property excluded from marital property by a valid marital agreement. Separate property is not divided during a divorce.
Q: How Many Years Do You Have to Be Married in Illinois to Get Alimony?
A: There is no minimum requirement for marriage length in order to pay alimony in Illinois. Whether or not alimony is assigned in a divorce case depends on the unique factors, financial ability, and needs of both parties. However, if alimony is awarded, the length of the marriage does impact how long those payments last. A longer marriage duration means payments must be made for a longer period of time.
Ensuring Your Marital Agreements are Enforceable
An experienced prenuptial or postnuptial agreement attorney can ensure that a marital agreement is legally valid and that both parties’ rights are protected. Contact the team at Stange Law Firm to see how we can help.
