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DuPage County family law attorneyTo protect individual property, safeguard business assets, and various other reasons, many couples today are choosing to sign prenuptial or postnuptial agreements. While no one goes into a marriage expecting to get divorced, it can be beneficial to both parties to prepare for the possibility, since almost half of all marriages do end in divorce. By preparing a valid agreement, both parties can protect their financial interests and remove any uncertainty should a divorce come about. However, there are certain issues that can invalidate an agreement that both spouses should understand.

Issues That Can Invalidate an Agreement

Whether the agreement is signed before the couple gets married or once they are already married, a prenuptial or postnuptial agreement still has the same function and can be used during the divorce to settle issues including the division of marital assets and spousal maintenance payments.

However, there are a few reasons why such an agreement may be invalid and unenforceable. These can include:

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DuPage County Marital Agreement LawyerGetting a prenuptial agreement does not mean that you are preparing for divorce–far from it. Couples who are able to successfully negotiate a prenuptial agreement show excellent communication and compromise skills, which are both indicative of a strong couple. Prenuptial agreements can actually cover more than just divorce terms, and can also help couples who do make it until death do they part. However, there is always a chance that you will one day decide to split up, in which case your prenuptial agreement can protect both of you. There are also legal safeguards in place to prevent a drastically unfair agreement from being enforced, so the risk level might be lower than you think. It is always a good idea to be represented by your own attorney while entering a prenuptial agreement. 

Why Should Every Couple Have a Prenuptial Agreement?

Having a prenuptial agreement in place can be extremely helpful in the event that you do get divorced, but the reasons you need one are not limited to the agreement’s helpfulness in divorce. Reasons you might want a prenuptial agreement include: 

  • Financial clarity - During the process of negotiating a prenuptial agreement, both of your complete financial situations will come to light. This can help you enter your marriage with full knowledge of each other’s finances. 

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dupage county prenuptial agreement lawyerIn many cases, couples who are planning to get married may be considering whether they will need the protection of a prenuptial agreement. A prenup can be beneficial in many situations, including cases where one or both spouses own significant assets or have children from a previous relationship. By entering into an agreement that decides how certain issues will be handled if their marriage ends in divorce, a couple can avoid uncertainty, minimize potential disputes, and provide themselves with financial protection. When creating a prenup, it is important to understand how matters related to spousal maintenance (also known as alimony or spousal support) may be addressed.

Modifying or Waiving the Right to Spousal Support in a Prenup

Under Illinois law, a person may have the right to receive financial support from their former spouse if there is a significant disparity between the parties’ incomes. During a divorce, a spouse may ask that spousal maintenance be awarded, and the judge in their case may consider multiple factors to determine whether this type of support would be appropriate. If maintenance is granted, statutory formulas will be used to calculate the amount that will be paid and the duration that these payments will last.

In a prenuptial agreement, a couple may decide ahead of time whether spousal support will be paid, eliminating the need to ask a judge to settle this issue at the time of divorce. A prenup may state that both spouses will waive the right to receive maintenance, or it may specify that one party will receive a certain amount of spousal support for a certain duration. Conditions may be placed on whether maintenance will be paid. For example, the prenuptial agreement may eliminate the right to support if a spouse commits infidelity or only require maintenance if a spouse earns a certain amount of money.

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DuPage County family law attorneyIn many modern marriages, prenuptial agreements are used to provide spouses with protection and make decisions about how certain issues will be addressed if the couple chooses to get a divorce. A prenup can make sure spouses can continue to own certain types of property after their divorce, or it can decide whether a spouse will receive spousal maintenance. A properly executed prenuptial agreement can help spouses avoid uncertainty during their divorce and make sure their financial interests will be protected. However, if disputes arise about the terms of a prenup, spouses should be aware that there are certain issues that may cause an agreement to be invalid.

Enforceability of Prenuptial Agreements

When a couple signs a prenup before getting married, this indicates that they both understand the terms of the agreement and are satisfied with the decisions made. However, disputes can sometimes arise during a divorce in which a spouse may claim that the agreement should not be enforced. When these types of disputes are addressed through litigation, there are only a few reasons why a prenup may be found to be invalid. These include:

  • The agreement was not executed correctly - Both parties must sign a prenuptial agreement before getting married. If one spouse did not sign the agreement, or if it was signed after the date of the couple’s marriage, it may not be valid.

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Naperville prenuptial agreement attorneyIn most cases, marriage is meant to be a permanent partnership, and a couple will plan to stay together for the rest of their lives. However, it is important to remember that a significant percentage of marriages end in divorce. While the actual divorce rate in the United States is difficult to determine accurately, it is generally considered to be between 40 and 50%. Even though it may be unpleasant to contemplate, recognizing the distinct possibility that your marriage may end in the future can help you consider how you want certain issues to be handled in a potential divorce.

By discussing these matters with your partner before you get married, you can determine whether a prenuptial agreement is right for you. This type of legal agreement can provide both of you with reassurance that you will have the financial resources you need if your marriage ends, and by making decisions now, you can take some of the uncertainty and conflict out of the divorce process. A prenup can also include provisions to ensure that certain assets will be given to your children, or it can be used to protect a business that you or your partner own from being negatively affected by a divorce.

Terms of a Prenuptial Agreement

A prenup will usually focus on financial matters related to the property owned by you or your partner, the assets you acquire during your marriage, and the income that each of you earns. You can specify how property will be divided or allocated if you get divorced or separated, if one spouse dies, or in the case of many other events that you may specify. Your prenup can also include terms detailing each spouse’s rights and responsibilities toward different assets during your marriage, including the right to buy, sell, use, manage, exchange, or lease property.

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