Prenuptial Agreements
DuPage County Prenuptial Agreements Attorney
Prenuptial agreements are not only fully enforceable under Illinois law, they are actually favored. Prenuptial Agreements are no longer the tools of only the very wealthy. Premarital Agreements are rapidly gaining popularity throughout all facets of society.
Engaged persons enjoy a legally recognized relationship know as a "confidential relationship". Simply put, engaged persons have a legal duty to be fair and honest in their dealings with each other. This is an important point when considering a Prenuptial Agreement since the duty does not attach for non-engaged persons. Therefore, the status of your relationship at the time of the preparation and signing of the agreement may be a critical factor in its enforceability at a later date.
Uses and Purposes of Pre Martical Agreements
The intended purposes of most prenuptial agreements are:
1. Estate Planning. In Illinois, the Probate Act entitles a spouse to renounce a will and claim a significant portion of the deceased spouse's estate - even if the will sought to disinherit the spouse and protect the estate for the children. If there are no children of the deceased spouse and he or she dies without a will (intestate) the entire estate will pass to the surviving spouse. If there is no will and the decedent leaves children, the surviving spouse will inherit one-half of the entire estate and one-half of the estate is divided among surviving children.
A Premarital Agreement can modify ALL of the above and can legally prohibit a spouse from claiming his or her statutorily-enforced share or from inheriting at all under the Illinois laws governing intestacy. This fact becomes very important where couples marry later in life or have certain items of property which may have been in his or her family for years. A Premarital Agreement can require the making of a will, trust or similar instrument to carry out your wishes upon your death.
2. Domestic Relations Issues. The rate of divorce in our society is holding steady at the fifty percent mark. Simply put, one of two marriages today will end in divorce. The rate of divorce for second marriages is even higher. We are wealthier and more educated now than at any time in our history. Premarital Agreements can plan for an equitable split in the event the marriage fails.
The Illinois Marriage and Dissolution of Marriage Act is the Illinois statute that governs the applicability of Premarital Agreements in the event of a divorce. As a general statement, any property or income acquired during the course of a marriage is considered marital property and subject to equitable division upon divorce. A Premarital Agreement allows the parties to designate what would otherwise be considered marital property as non marital property -- thereby avoiding distribution upon divorce. This can be especially important in cases where one owns a business in partnership with others or where a particular piece of property has been passed down in your family for generations.
A Prenuptial Agreement can also decide issues of maintenance or support in the event of divorce. No agreement can abrogate the legal duty of a spouse to provide support for the other spouse during the course of the marriage, and the obligation to provide child support can never be waived through a premarital agreement. However, certain other issues related to child rearing can be specifically governed by the terms of a Premarital Agreement.
Requirements for a Valid Prenuptial Agreement
- Financial Disclosure. Full financial disclosure is required of both parties to a Premarital Agreement. Do not wait until the rehearsal dinner to raise the issue of a Premarital Agreement.
- Timeliness. Timeliness is important. Do not wait until the rehearsal dinner to raise the issue of Premarital Agreement. Illinois law requires that each party have sufficient time to review and consider the terms of a proposed Premarital Agreement. Illinois case law is replete with examples of Premarital Agreements being invalidated because the parties had insufficient time to review the document and obtain legal counsel. Generally, one attorney will draft the agreement and present it to the other party's lawyer for review. At Debra J. Braselton, P.C., we provide both drafting and review services for those considering a prenuptial agreement.
- Other Considerations. Finally, keep in mind that other legal documents (e.g., wills, trusts, pension plans or insurance policies) may conflict with the Premarital Agreement and could lead to costly litigation down the road. Make sure all your beneficiaries are appropriately designated, and make sure that you prepare a will that clearly evidences your intent.
Parentage Actions
Parentage cases involve never married parents. By virtue of biology, the determination of motherhood is made at the time of the child’s birth. The law makes no distinction as to whether or not the woman is married. If a woman gives birth to a child, she is deemed to both the legal and biological mother of that child. As such, the law automatically vests her with all the rights and responsibilities associated with parentage without regard for her marital status.
The law is significantly different for Dad. Never married fathers have an entirely different set of rights than divorced fathers. First, there is the legal presumption that any child born during the course of a marriage is the child of the marriage. This presumption can have harsh results for the biological father if the child is a result of an extra marital affair with a married woman. If a child is born to a married woman, the legal presumption is that the child is the biological son or daughter of the husband. If that is not true, the biological father must immediately take steps to establish himself as the legal father or forfeit any legal right to participate in the life of his child.
In cases where both parents are unmarried at the time of a child’s birth, Illinois law provides a Voluntary Acknowledgment of Parentage form which can be signed before the child leaves the hospital. By so doing, the parties are clearly establishing the identity of the child’s biological father and preserving the father’s legal right to the child.
Certain rights and responsibilities attach upon designation as the “legal” father. For example, child support is an obligation owed to children by both parents, and the right to receive child support belongs the child; a parent cannot waive a child’s right to support. Where the parents never married, however, there is no legal right of visitation without a court order. This is merely one of the significant differences between the rights of divorced fathers and rights of never married fathers. In other words, a never married father may find himself responsible for paying child support but may not enjoy visitation rights with his child.
Timing is critical. Although Illinois law allows never married fathers to petition for custody and visitation of their children born out of wedlock, any court order affecting the child (e.g., a child support order) will operate to vest sole custody in the mother. This fact can have serious ramifications in the future if the father should ever seek custody of his child.
