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Can I Become My Sibling’s Legal Guardian in Illinois?Unfortunately, not all children have two parents who love and properly care for them. Some children must endure the tragedy of losing one or both parents at a young age, while others have their parents stripped from them as decided by the court system. In most cases, these difficult decisions being made by the court are in the best interests of the child, even if the child is too young to see it that way. If family members are unable to care for the adolescent, they will be entered into the foster care system to be taken care of by volunteer foster families. However, for those who have siblings age 18 or older, they may have an alternative option: legal guardianship.

What Is Legal Guardianship?

Many children who are on the brink of joining the foster care system have spent much of their lives caring for themselves or have been lucky enough to have an older sibling who has taken on a parental role in their lives. However, without legal guardianship rights, the child will not be able to remain in their care. Illinois law allows all adolescents to have at least one legal guardian, and in the absence of their parents, a close family member may take on this role. Children over the age of 14 can grant consent to guardianship requests, but those under this age must rely on the court’s decision. In Illinois, anyone who is age 18 or older, is of “sound mind,” has not been convicted of a serious crime, and is deemed acceptable by the court can apply to be the person’s guardian. The qualifications may seem somewhat minor, but the court’s impression of the guardianship applicant can make or break your case.

What Does the Court Look For?

As is the case with all Illinois legal proceedings involving children, the court’s main purpose is to make a decision in the best interests of the child. There are a few considerations that the court will keep in mind when hearing a guardianship case:

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How to Encourage Your Fiance to Enter Into a Prenuptial AgreementThere are situations where creating a prenuptial agreement is both prudent and necessary. For instance, you may have significant premarital assets that could potentially become entangled with your marital assets. A prenuptial agreement would clearly identify the properties that belong to you in the event of a divorce. However, asking your fiance for a prenup can be uncomfortable. If you ask in the wrong way, you risk damaging your relationship and possibly endangering your marriage. To avoid a negative reaction, you should discuss getting a prenuptial agreement in a way that allows your fiance to feel comfortable and in control of the process.

Start the Conversation Early

You can broach the subject of getting a prenuptial agreement before you get engaged, letting your partner know that it is something you are considering. That way, your fiance should not be caught off guard when you talk about it after your engagement. Ideally, you want to negotiate and complete the agreement months before your wedding. There are several reasons why a last-minute prenup is a terrible idea:

  • Your fiance may feel like you are pressuring them if you ask for a prenuptial agreement only a few weeks before the wedding.
  • A divorce court may later find your agreement to be invalid if your spouse claims they signed it under duress.
  • Your fiance needs time to consider your request and find their own legal representation.
  • The weeks leading up to a wedding are already hectic and stressful without adding the need to negotiate a prenuptial agreement.

Make It a Collaborative Effort

Though you may have a greater interest in creating a prenuptial agreement, your fiance needs to feel like an equal partner in the process. This starts with being honest about why you want a prenup and explaining how the agreement could benefit you both. Encourage your fiance to hire their own family law attorney to make sure they have someone who is representing them throughout the process. Conduct the negotiations in a way that gives your fiance an equal voice in deciding on terms of the agreement. Creating a prenuptial agreement together can be practice for how you will collaborate when you are married.

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How to Know When You Need a Postnuptial AgreementCouples have the option of creating a prenuptial agreement before they get married, but some never act on it. There could be several reasons for this, such as:

  • Believing it is unnecessary given their level of personal assets
  • Feeling uncomfortable with the idea of preparing for a hypothetical divorce
  • Simply not thinking about getting a prenup or knowing what it is

Now that you have married, you still have the opportunity to create a postnuptial agreement. Like a prenuptial agreement, a postnuptial agreement can decide how you will divide your marital properties, define which properties are separate, and determine whether one of you will owe spousal maintenance to the other. If you did not feel a need to create a prenuptial agreement, you may ask why you would want to create a postnuptial agreement. There are several financial factors that could cause you to change your mind on creating an agreement:

  1. You Have Started or Grown a Business: Many couples begin their marriages owning few valuable assets. Starting a successful business or practice means that you now own valuable property. Businesses that are created or see growth during a marriage are considered marital property. During a divorce, your spouse would have a right to an equitable share of your business. With a postnuptial agreement, you can state that you would keep complete control of the business in the event of a divorce.
  2. You Stopped Working During Your Marriage: It is common for a spouse to take time off from work in order to raise children. Even if you did not leave your job, you may have reduced your hours or passed up opportunities for career advancement, which makes you more reliant on your spouse’s income. You would be entitled to spousal maintenance if you divorced, and it may be easier to negotiate the maintenance amount now in a postnuptial agreement than during a divorce.
  3. You Received an Inheritance: People can suddenly come into possession of valuable properties, such as when they receive an inheritance from a family member. Inheritances are not marital properties when they are gifts meant for one person. However, the longer you possess the inheritance, the more likely it is that it will mingle with your marital properties. A postnuptial agreement can define which properties make up your inheritance.

Contact a Naperville, Illinois, Family Law Lawyer

Creating a postnuptial agreement does not have to be an awkward experience. At Calabrese Associates, P.C., we work with many couples who have decided to make a prenuptial or postnuptial agreement for practical reasons. To schedule a consultation with a DuPage County family law attorney, call 630-393-3111.

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How to Become the Guardian of a Minor in IllinoisThere are situations in which a child’s parents may be unable or unavailable to perform their basic duties as a parent. If that happens, another adult can become the legal guardian of the child, either on a short-term basis or until the child becomes an adult. The guardian is authorized to make decisions about the child just as if they were the child’s parent. If you wish to become a child’s guardian, you will need to receive court approval. There are several important facts about guardianship in Illinois that you should understand.

Who Can Become a Guardian?

You do not need to be related to the child in order to be their guardian, but it is in the child’s best interest if you have some history of interaction. The basic requirements for being a guardian in Illinois are:

  • Being at least 18
  • Being of sound mind
  • Being a U.S. resident
  • Not having a legal disability
  • Not having a felony conviction related to harming or threatening children

When Is Guardianship Allowed?

Granting guardianship presumes that the parents are unable to make decisions regarding their child. Courts will not transfer parental rights to another adult unless there is a strong reason, such as if the parents:

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Cohabitation Agreements Protect Property Rights After BreakupsRomantic relationships are less bound by the need to marry than they were decades earlier. Adults can live together, share their finances and raise a family without ever marrying each other. However, there are institutional benefits to being married, including the rights and protections that you receive if you divorce. Divorcees in Illinois are entitled to an equitable share of their marital properties and are presumed to both have parental rights. Unmarried couples can protect themselves in the event of a breakup by creating a cohabitation agreement, a document that serves a similar purpose as a prenuptial agreement.

Why You Need a Cohabitation Agreement

Most properties that you acquire during a marriage are classified as marital properties, which you each have a fair claim to. The issue is murkier if you have a property dispute after the breakup of an unmarried relationship. The Illinois Supreme Court has denied equitable property rights to unmarried couples in the past. A written cohabitation agreement is a contract that:

  • Defines which properties you will divide in the event of a breakup
  • Divides the properties in a way that you deem fair
  • Creates an obligation for your relationship partner to follow the principles of fairness following your breakup

Cohabiting partners may have many properties that they paid for together or have both invested in, such as a home, vehicle, household appliances, and luxury items. For instance, your partner may have purchased your home on their own, but you may have a financial interest in the property if you have contributed to paying expenses on the household.

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When Does Illinois Allow the Termination of Parental Rights?Illinois family courts rarely decide to terminate parental rights. An unfit parent may lose a significant portion of their allocation of parental responsibilities, but courts want to avoid terminating someone’s parental status and leaving a child with one legal parent. The child support obligation is the most pressing issue because losing financial support from one parent could hurt the child. There is also an emotional benefit to the child knowing they have two parents, even if one is less active in their lives. Despite the negatives, there are two situations in which a court will consider terminating a parent’s rights:

  • Cases involving adoption; and
  • Unfit parent cases brought by the state.

Adoption

As previously mentioned, a family court is highly unlikely to grant a request to terminate the parental rights of one of the biological parents, whether it is voluntary or involuntary. However, it may consider the request if there is another adult who is willing to adopt the child. This adult would most likely be someone who has married one of the biological parents and become a stepparent. The process is simplest when a biological parent voluntarily surrenders their rights as a parent. Contested cases are more difficult because the parent requesting the termination will need to prove that the other parent is unfit and has shown no interest in the child.

Juvenile Cases

The state can initiate a parental termination case on a recommendation from the Illinois Department of Children and Family Services. There are three reasons that the DCFS may claim that a parent is unfit:

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Disproving Paternity Does Not Always Terminate Parental ObligationsIllinois presumes that the husband is the legal father to any child conceived or born during the marriage. The legal father has a right to parental responsibilities and an obligation to contribute to child support in the event of a divorce. The presumed father can declare the non-existence of a parent-child relationship if he learns that he is not the biological father. If the court grants the action, the man can ask to terminate his legal obligations to the child. However, terminating your parental responsibilities takes more than claiming that the child is not yours.

Time Limit

You must file a petition to terminate your paternity within two years of learning that you may not be the father. The two-year time limit can start at any point, as long as you had no reason to doubt your paternity before learning the relevant facts. For instance, an Illinois court recently approved a man’s petition to terminate his parental obligations when his former wife told him that he was not the father of their 12-year-old daughter. A DNA test proved this to be true, and, after hearing testimony, the court believed that the man had not previously known that he was not the father.

DNA Testing

A genetic test is the surest way to determine whether you are the biological father of a child. Illinois law instructs courts to grant DNA testing when either parent or child requests it. However, the court has the right to deny a DNA test if it believes that it is against the best interest of the child for reasons such as:

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Mistakes to Avoid When Creating a Prenuptial AgreementThe purpose of a prenuptial agreement is to save you time and stress in the event that you divorce. Mistakes in your agreement can make the divorce process more complicated instead. Imagine your frustration if you learn that the agreement is unenforceable because of the way you created it or a provision in it. You may end up renegotiating your division of property and spousal maintenance. A fully enforceable agreement could be just as frustrating to you if you realize that it leaves you at a disadvantage. You would need a legal reason to discard a valid contract. Despite the possible problems, there are many couples who benefit from having a prenuptial agreement when they divorce. There are four mistakes that you should avoid when creating an agreement:

  1. Do Not Rush: You should give yourself weeks to months to create your prenuptial agreement. You need time to consider what you want from the agreement and to examine it before you approve it. You may feel tempted to hurry through the process because the idea of getting divorced makes you uncomfortable. However, you will wish you had taken the time to understand the agreement if you end up using it.
  2. Do Not Withhold Information: A prenuptial agreement can be invalid if one of the parties lied about or withheld financial information that would have changed the agreement. This is usually a valuable premarital property that someone hid. If your future spouse knew about the property, he or she may have asked for a greater share of marital assets. Parties can also withhold information about debts that could become a marital obligation in a divorce.
  3. Do Not Use the Same Lawyer: At first glance, it may seem practical to share one family law attorney when creating a prenuptial agreement. You are on good terms with each other and share the same goals. However, you each need your own attorney to look at the agreement and make sure that it is fair to you. You should choose your own attorney to ensure that he or she is independent of your partner.
  4. Do Not Sign Anything You Are Uncomfortable With: You are not obligated to approve a prenuptial agreement before your marriage. If something in the agreement seems wrong or confusing, ask your attorney to explain it to you. Your future spouse is not allowed to pressure you into signing, such as presenting an agreement the day before your wedding. Creating an agreement under duress would make it invalid.

Contact a Naperville Family Law Attorney

A prenuptial agreement is a complicated document, much like a divorce agreement. You need an experienced DuPage County family law attorney at Calabrese Associates, P.C., to create a valid agreement that is fair to you. To schedule a consultation, call 630-393-3111.

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Illinois Court Rejects Father's Relocation PetitionA co-parent who wishes to relocate with his or her children bears the burden of proving why the move is in the best interest of the children. There can be several reasons why children may benefit from relocating, such as:

  • Better education;
  • A more diverse community;
  • Proximity to family members;
  • A higher standard of living; and
  • Employment opportunities for the primary parent.

However, the court must also consider how the relocation would affect the other parent’s rights. Regularly visiting each parent is often of the greatest benefit to the children. A court may reject a relocation petition if it is unconvinced that the children will be in a clearly better living situation than they are currently.

Recent Example

In the case of In re Marriage of Fatkin, a divorced father asked to relocate his two children from Illinois to Virginia. The father, who had a greater share of the parenting time, had not found full-time employment where he was living and wished to move into his parent’s home in Virginia Beach, where he grew up and had a job waiting for him. He cited several ways that his children would benefit from the move:

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Should You Become Your Parent's Guardian?Your parents may reach a point in their old age that they are no longer able to make decisions about the important matters in their lives. Ideally, you will prepare for this possibility with them by creating a power of attorney for healthcare and finances. If you do not have these documents, you can request adult guardianship for a parent. If granted, the guardianship will allow you to manage your parent’s finances and decide how to proceed with medical treatment and living arrangements. However, you must consider the potential consequences before applying for adult guardianship:

  1. Will Your Parent Contest It?: It can be infuriating for an adult to cede the ability to make his or her own decisions. Your parent may have enough self-awareness to fight your attempts to take control of his or her life. Of course, this does not mean that your parent is mentally fit, but you may end up in a bitter court battle to obtain guardianship. Your parent may feel humiliated by the evidence that you present to prove that he or she needs a guardian. No matter the court’s decision, your relationship with your parent may be strained.
  2. Will a Family Member Contest It?: Just because your parent needs a guardian does not mean that it will automatically be you. Your other parent will be the first option to make important decisions, as long as he or she is capable of doing so. If your other parent is also mentally unfit, you may need to contest his or her decision-making powers. Your siblings may vie for guardianship over your parents and contest your attempts to take control. Ideally, you can share the responsibility with your siblings, but they may be unreasonable and unwilling to give up any power.
  3. Is Guardianship Necessary?: Becoming the legal guardian of your parent is a costly and time-consuming process. Before starting, you should question whether your parent needs a guardian in this situation. Being confused at times does not mean that he or she is incapable of making important decisions. By talking with your parent, you may get him or her to agree to take your advice on matters without requiring your legal authority.

Contact a Warrenville Family Law Attorney

Before applying for guardianship of your parent, you should check whether your parent already has documents related to the power of attorney. A DuPage County family law attorney at Calabrese Associates, P.C., can help you obtain guardianship if you need the legal authority to make decisions on your parent’s behalf. To schedule a free consultation, call 630-393-3111. 

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Your Rights When a Child Refuses Parenting TimeParents normally understand the importance of each of them having parenting time after a divorce. It is a legal right that each parent is presumed to have, and the children benefit from the regular contact and relationships they form. However, what should parents do if a child refuses to visit one of them? Teenagers can insist on their right to decide which parent they spend time with, not thinking that it would violate a legal agreement. Both parents are responsible for solving any conflicts related to parenting time.

Right to Parenting Time

You can force your child to attend your parenting time, but he or she is likely to be miserable if he or she does not want to be there. You should ask your child why he or she does not want to visit you. You may need to ask specific questions if your child does not give you a clear answer, such as:

  • Are you comfortable spending time with me and living in my home?;
  • Is there anything I can do to make our time together more enjoyable?; and
  • Is there something else you would rather be doing when you visit me?

The last question may be crucial when talking to a teenager, who may feel that your scheduled visits disrupt his or her social life. Your teenager may be mature enough to have a say in your parenting schedule. Be willing to adjust your schedule to fit his or her needs, but tell your teenager why you still want to see him or her regularly.

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Creating a Parenting Schedule for the HolidaysYour first holiday season after your divorce can be stressful for you and your children because it is the first time you are not celebrating the holidays together as a family. Your parenting schedule should not add more stress to the season. Divorced parents often have unique schedules for holidays such as Thanksgiving and Christmas. You may have already included one in your divorce parenting agreement. However, you will not know how well the schedule works until you put it into action. You may need to adjust your holiday parenting schedule to something that works better for your children.

Qualities of a Good Schedule

You should build your holiday parenting schedule around what will create the most enjoyable experience for your children. This requires sacrificing some of your own time with the children so that both you and your co-parent can celebrate with them. How you divide your time depends on your individual circumstances. You should ask yourselves:

  • Which home will the children be most comfortable spending a holiday at?;
  • Which parent is most capable of hosting a holiday celebration such as a dinner?;
  • What other family members will the children be able to see when staying with each parent?;
  • Are the children old enough to handle traveling between parents on the holiday?; and
  • Is one parent more closely associated with certain holiday traditions than the other?

Types of Schedules

There are four ways that you can structure your holiday parenting schedule:

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Legal Recourse When a Parent Flees with a ChildA divorced parent living in the Chicago area may not relocate with his or her children more than 25 miles from their current home unless:

  • The other parent agrees to the move; or 
  • A court approves the move.

The relocating parent must file a petition to relocate and prove to the court that it is in the children’s best interest to move with him or her. The court can block the children’s move and modify the division of parenting time if the parent decides to relocate anyways. Fearing that a court will reject their relocation requests, some parents flee with their children to another state or country. State, federal, and international laws can help you rescue your children if your co-parent has abducted them.

Parental Kidnapping

Illinois defines parental kidnapping as when one parent defies a court-approved parenting order by hiding or removing the children from the other parent. You can request an emergency custody order for your children if you believe your co-parent has fled with them or is a risk to do so. Federal law allows your state’s courts to maintain jurisdiction over your parenting case, even when your co-parent flees to another state.

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How a Postnuptial Agreement May Strengthen Your MarriageCreating a postnuptial agreement seems like a sign of weakness in a marriage. Why would you need an agreement that prepares you for a potential divorce if your marriage is strong? A postnuptial agreement is a practical document that you should create when you and your spouse are cooperating. Having a postnuptial agreement means you recognize that you could divorce and that you may disagree on what to do with your assets at that time. Instead of a weakness, negotiating a postnuptial agreement can be healthy for your relationship:

  1. You Are Discussing Your Finances: Financial struggles and disagreements cause marital conflict that can lead to divorce. You may have financial concerns but are avoiding a conversation with your spouse because it is stressful. Ignoring the topic will not make the problem go away. Negotiating a postnuptial agreement forces you to talk to your spouse about your finances.
  2. You Discover What You Disagree About: You may have a different philosophy about spending and saving than your spouse. Your negotiations are your chance to say that you are concerned about your spouse’s spending choices and how they may hurt your marital assets. Your spouse may have his or her own concerns about your spending habits. You can plan so that you both would have enough assets to support yourselves in case of a divorce.
  3. The Negotiations Encourage Honesty: Even when together for several years, you may not know all of the assets your spouse owns or how much money he or she earns. It is appropriate for you to ask your spouse for details about his or her finances during the negotiations. Your postnuptial agreement would be invalid if your spouse hid significant assets from you. Believing that your spouse is not hiding anything from you will improve your trust in your marriage.
  4. You Are Working Together Towards Solutions: Creating a good postnuptial agreement requires finding compromises for complicated financial issues. You want an agreement that is fair to yourself and your spouse. By the end of the process, you will have gained experience in cooperating with your spouse to solve difficult situations.

Worthwhile Process

You may never need to use your postnuptial agreement but will be happy that you created one if you ever divorce. The agreement saves you time by settling some of your divorce’s most contentious issues in advance. A DuPage County family law attorney at Calabrese Associates, P.C., can help you make a postnuptial agreement or review an existing agreement. Schedule a consultation by calling 630-393-3111.

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Improving as a Father Through DivorceSome men become more active and involved fathers despite the obstacles that their divorces create. Courts often grant less allocation of parental responsibilities to fathers, which means that fathers have less time with their children and less say in parenting decisions. As a father, you are always a full-time parent, even if you see your children only part-time. You need to change what you require of yourself as a full-time father.

Parenting Time

You should treat your time with your children as a precious resource. When you were living with your co-parent, you could be less active with your children because you were sharing parental responsibilities. Single parents cannot avoid interacting with their children and taking direct responsibility. This should include:

  • Talking with your children individually;
  • Helping them with their homework or life problems; and
  • Having fun with them.

You need to adjust the rest of your life's schedule to make the best use of your parenting time. You may need to shift your work hours so that you can be with your children during your parenting time. Social activities with friends or romantic interests should always be secondary to your time with your children.

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Parenting Plans Should Be Specific, Yet FlexibleWhen it comes to a document as important as a parenting plan, you want to avoid vague language and unanswered questions. A weak parenting plan can create conflict between the co-parents, which may also harm the children. Your parenting plan can be as specific as you need to prevent your co-parent from interpreting it differently. However, the plan should also be flexible so that you can respond to unusual circumstances with practical solutions. A good parenting plan thoroughly addresses all of the known issues that are involved in co-parenting while allowing flexibility to adjust to unforeseen issues.

Detailed Document

Parenting time is rightfully the most discussed aspect of a parenting plan because it is the most fundamental part of co-parenting. However, there are numerous areas of co-parenting in which there is a potential for conflict if the plan does not specifically address them. Some of the most common questions that the plan should answer include:

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Remembering a Prenuptial Agreement for Your Next RelationshipGoing through a divorce is when you are most likely to realize how useful a prenuptial agreement can be. The agreement can save time on the negotiation of the division of properties and spousal maintenance. Unfortunately, it is too late to create a prenuptial agreement or even a postnuptial agreement if your divorce has already started. You should remember this lesson when you enter your next major relationship that involves sharing assets with your partner. Creating a prenuptial or co-tenancy agreement is a practical step towards protecting individual assets if you have previously divorced.

Second Marriage

There may be several reasons why you did not create a prenuptial agreement before your first marriage:

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When You Can Extend Child Support Beyond Age 18In most cases, divorced or separated parents’ obligation towards child support for an individual child ends when the child turns 18 years old. If there are other children who are still minors, the support payments must be modified to reflect one less child. Otherwise, the support payments end once the last child becomes a non-minor. A parent may not feel like his or her parenting expenses are over if the non-minor child continues to live with him or her or is still financially dependent. There are three situations in which Illinois law allows the primary parent to continue receiving child support payments after the child has become a legal adult.

College Students

Young adults often choose to obtain a post-secondary education, but attending college is expensive. Illinois parents can petition to continue child support payments to cover a non-minor child’s college expenses, including tuition, housing, textbooks, school supplies, food, and medical expenses. Students who commute to school while still living with a parent are eligible, though the living expenses will be less. However, there are qualifications and limitations to the support payments:

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Settling Parental Disputes Across State LinesDisputes involving the allocation of parental responsibilities become more complicated when one of the parents moves to a different state. Relocating with a child from Illinois to another state requires court permission, decided by what is in the best interest of the child. If the relocation is approved, there are new questions about:

Most states in the U.S., including Illinois, have adopted the Uniform Child Custody Jurisdiction and Enforcement Act to set guidelines for co-parenting across state lines.

Jurisdiction

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Reasons Your Prenuptial Agreement May Need an UpdateCreating a prenuptial agreement is helpful in settling financial issues that will come up during a divorce. The agreement lays out a plan for how premarital properties will be treated and what level of spousal maintenance will be provided. However, spouses should consider it a living document that may need to be updated. Financial circumstances in the marriage can change in ways that make the agreement obsolete or unfair to one party. It will be easier for both parties to renegotiate the prenuptial agreement while still married than during the divorce.

Spousal Maintenance

Parties in a prenuptial agreement may choose to establish the value and duration of spousal support payments after divorce, especially when one party has a significantly greater income than the other. However, the balance of financial power can change in a marriage: 

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