When a couple divorces in Illinois, their marital property is subject to an equitable division. This means a “fair” division based on a number of factors within the court’s discretion. Marital property is generally all income and property earned and acquired during the course of the marriage.
In contrast, anything that a spouse owned coming into the marriage is generally “separate property”, is not considered in the divorce division, and stays with its original owner. Therefore, during divorce proceedings, one of the fiercest conflicts often comes in categorizing property as marital or separate property. This is why some couples choose to preemptively address property by agreement.
Prior to entering into a marriage, couples can enter into a prenuptial agreement. This is a formal written document that is enforceable so long as it complies with specific guidelines. There is a wide range of issues that can be addressed, which will take effect in the event of a separation or divorce. This includes designating exactly how property will be divided.
Prenuptial agreements are not just for celebrities. In fact, they are becoming an increasingly common risk management tool amongst couples of all age ranges, such as people who come into a relationship with complex assets, like a family business or business interest that they want to protect. Or people who want to keep their retirement accounts separate. In addition, prenuptial agreements are often considered by couples who are both entering their second marriage with ample assets, who want to protect those assets, as well as the inheritance rights of their biological children.
Prenuptial agreements can also protect individuals who plan to forgo their own career or education to maintain the household and raise the children, giving the other spouse the opportunity to pursue their career or grow their business. A prenuptial agreement can designate specific property and assets for that individual, as well as alimony payments to cover the costs of continued education or training.
The primary reason that couples enter into prenuptial agreements is that it limits the uncertainty and costs of an extended legal battle in the case of a divorce. Courts will almost always enforce prenuptial agreements, unless it deprives a child of child support, was improperly obtained under duress, leaves one spouse destitute, or is “unconscionable”.
If you are getting married and are interested in the prospect of keeping your property separate, contact my office. You need an experienced family law attorney who can help protect your interests and prepare a prenuptial agreement or post separation agreement. I have represented clients for over twenty years and can help create a clean, enforceable agreement. Contact The Law Offices of Robert S. Thomas at 847-392-5893 to schedule a consultation or visit our website today.