Until last year, Illinois defined marriage as a union between a woman and a man. The marriage equality bill that Governor Pat Quinn signed in 2013 became law on June 1, 2014. Now, gay couples have the same right to marry as straight couples. That right affords benefits that were once out of reach. While same-sex couples already had the right to enter into civil unions in Illinois, the right to marry came as a personal – and financial – victory.
With the right to marry comes the right to divorce. While that might not be a comfortable topic of conversation for men and women who only recently gained marriage equality, divorce is a modern–and common–reality that married couples face. In facing that reality, all couples should consider their options before marriage, specifically the possibility of a prenuptial agreement.
Prenuptial Agreements
A prenuptial agreement (prenup) is a written document between two parties that outlines how marital assets will be divided if the couple separates or divorces. Also referred to as a premarital agreement, this contract takes effect when the couple marries and can only be revoked or amended if the couple enters into a second agreement. The prenup must be in writing, and it must be voluntarily signed by both parties. If either party can offer evidence of duress, fraud, coercion or something else suggesting that he signed the prenup against his will, then the agreement is not valid.
Typically, a prenup will discuss:
- Each party’s responsibilities and rights as to marital assets (which is property acquired during the marriage);
- Each party’s rights and responsibilities as to non-marital property (which is property that a party inherits individually or is owned before the marriage);
- Whether each party’s will must be written in order to reflect the terms of the prenup;
- How marital assets will be divided if the couple separates or divorces;
- If one party will pay maintenance (alimony) if the couple divorces; and
- The terms of any alimony payments.
Postnuptial Agreements
For some couples, a prenup has a bad connotation. If you balked at entering into a prenup, keep in mind that you can always enter into a postnuptial (postnup) agreement after you are already married. A postnup, like a prenup, is a practical step for any married couple to take. A postnup can also define each party’s financial rights and responsibilities, including how marital assets should be divided in the event of separation or divorce. The agreement must be in writing and voluntarily signed by both parties.
Postnuptial and prenuptial agreements are a practical option that every couple should consider. While the idea of divorce might seem just like that–an idea–all too often it is an unforeseen reality. It might be better to prepare for that eventuality now than in the heat of the moment. If you need help with an agreement, or with any family law-related issue, contact one of our experienced Chicago, Illinois divorce attorneys for a consultation. We can help protect your finances in case your marriage does not last.