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DuPage County family law attorneysA prenuptial agreement can help both you and your spouse enter your marriage with peace of mind regarding your finances, and if your marriage later ends in divorce, a prenup can make the process much easier by laying out the terms for property division and spousal maintenance. However, in order for the agreement to take effect and be upheld by the court at the time of your divorce, it must be legally valid. There are a few things that you can do when creating your prenup to make sure that this is the case.

Establishing a Legally Valid Prenup in Illinois

As you prepare to draft your prenuptial agreement, consider these suggestions to ensure the agreement is enforceable:

  • Make sure the agreement is written and signed. A valid prenup must exist as a written document. Verbal prenups are not legally binding, nor are written prenups that have not been willingly signed by both partners.
  • Be open and honest with your partner. Concealing or lying about your assets and debts when creating a prenup results in an agreement in which your partner does not have the information necessary to make a decision. If evidence comes to light that you were dishonest with your partner about your property and financial situation, your prenuptial agreement will likely be considered invalid.
  • Aim for an agreement that is fair. Each individual or couple has different priorities when creating a prenup, and what is acceptable to you and your partner may be different from what is acceptable to another couple. However, it is important to ensure that the terms of your agreement would not cause undue hardship to either party in the event of a divorce. If the court determines that an agreement is not equitable, it may decide to award spousal support in a way that differs from what the agreement stipulates.
  • Avoid addressing child-related issues. Illinois law states that a prenuptial agreement cannot negatively impact a child’s right to support, so it is important to ensure that any of your minor children will have access to child support no matter the terms of your agreement. A prenuptial agreement also cannot address parenting time or parental responsibilities, so those matters will need to be addressed separately during the divorce process.
  • Consider updating your agreement over time. An agreement created before your marriage may lose relevance over time as your financial situation changes. If you or your spouse believes that the original agreement is no longer fair or suitable, you have the option to amend it to better reflect your current needs as long as both of you agree to the changes.

Contact a DuPage County Prenuptial Agreement Lawyer

Another way to ensure that your prenup is legally valid is to create it with the assistance of a qualified Wheaton family law attorney. At the Davi Law Group, we will work with you and your partner to help you reach an enforceable agreement that meets your unique needs. Contact us today for a free consultation at 630-504-0176.

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Wheaton prenuptial agreement lawyerWhile a prenuptial agreement may not seem like the most romantic wedding gift, it is likely one of the most valuable. That is because it does not just protect you in the instance of divorce; it can also set the financial tone for your marriage and reduce the risk of arguments over money. With years of experience assisting engaged couples with their prenuptial agreements, our legal professionals have compiled a list of ten considerations to think about before signing your prenup.

Consider This

  1. More Than Just Money: Prenuptial agreements are not just for the rich and famous. Many couples, particularly millennials, use them to protect their intellectual rights to ideas, inventions, and artistic creations. Of course, not all ideas prove to be lucrative, but the point is that a prenuptial agreement protects your rights to these intangible assets (and any proceeds that may come from them).
  2. Timing is Everything: To effectively protect your assets in the event of a divorce, you will want to sign the prenuptial agreement sooner, rather than later. Sign too close to your wedding date and your spouse could have an argument for signing under duress, which would nullify the details of your prenup.
  3. You Need Your Own Counsel: Engaged couples often assume they can use the same attorney when drafting their prenup, but this is not the most beneficial for either you or your spouse. Just as you would have separate lawyers protecting your interests in a divorce, you should have your own attorney there to safeguard those same interests in your prenup.
  4. Premarital Assets Are Usually Off-Limits: When drafting a prenup, recognize that premarital assets are generally considered off-limits. In an Illinois divorce, premarital assets will be given back to the spouse who brought them into the marriage.
  5. Children Are Excluded: You cannot define parameters for children in a prenuptial agreement. The state requires all decisions regarding parenting plans and child support designations to be made in the best interests of the child at the time of the divorce, not at the time of the prenup.
  6. You Can Include Alimony Provisions: If alimony may be an issue in a potential divorce, you can address it in your prenuptial agreement. This can ensure that the receiving spouse is provided for, but that the amount awarded does not exceed what the payor can handle. You can also waive or exclude alimony in your prenuptial agreement, should that be the path you feel is most appropriate.
  7. ’Til Death Do You Part: Prenuptial agreements can even address sole-owned assets in the event of a death. Provisions may be set aside for other family members as well as the spouse.
  8. Honesty is the Best Policy: Be sure to provide full financial disclosure when drafting your prenuptial agreement. Failure to do so could cause it to be overturned in a divorce. Worse yet, you may be penalized for attempting to hide assets.
  9. Fairness is Important: In a divorce, marital assets are divided equitably—or fairly. Your prenuptial agreement should mirror this “fair” standpoint. Otherwise, it could be overthrown during your divorce.
  10. Fair Is Not the Same for Everyone: The term “fair” is subjective. What you deem fair may not seem fair to someone else, your spouse included. As such, it is important to base your prenuptial agreement on the circumstances of your marriage—not what everyone else says is fair.

Contact Our Wheaton Prenuptial Agreement Attorneys

If you are thinking of signing a prenuptial agreement before you marry, contact Davi Law Group, LLC. Our seasoned DuPage County divorce lawyers can protect your interests and help you navigate the process. Schedule your personalized consultation by calling 630-580-6373 today.

 

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Illinois prenuptial agreement attorneysPrenuptial agreements are designed to minimize the risk of complications in a divorce, but this is not their only potential benefit. Used correctly, this legal document can also benefit a couple during their marriage. Get the details on how a prenup can benefit (and possibly even strengthen) your marriage, and discover how a seasoned family law attorney can help to smooth the conversation, should you decide to get one before you wed.

1. Prenups Can Bolster Your Marriage Against Money Issues 

Money is the second leading cause of divorce—and not just because one party has it and is trying to control it. Couples may earn close to the same amount but have wildly different views on how money should be spent or saved. As a result, they may argue incessantly over money, which can erode the foundation of their marriage. Alternatively, their financial goals may not align with one another, so the parties may work against one another instead of together toward a common goal. 

When creating a prenuptial agreement, couples typically discuss their financial habits and goals. This allows the parties to predict and potentially strategize against some of the financial issues that may arise over the course of their marriage. It also requires them to compromise and agree on some common financial goals. All this work, painful and stressful as it might seem, can bolster the marriage against money issues later on down the road. 

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DuPage County family law attorney, prenuptial agreementThe term prenuptial agreement or premarital agreement, usually referred to as a prenup in the media, is a written contract that is created by two individuals prior to their marriage. The purpose of such an agreement is to plan ahead to determine what happens in the event of death, divorce or separation. The agreement sets forth a list of property and debts owed by each person, and defines their rights to the property after they are married. A prenup usually deals with distribution of property, assets, liabilities, spousal support, and even attorney’s fees.

When a prenup is properly drafted and implemented, it is a legally binding contract between both spouses and its terms are enforceable. However, if a prenup is not drafted properly or fails to contain the financial specifics of both parties, it could be ruled unenforceable, and the plan you set in place could, in turn, fall apart. 

As you can see, if your prenup is not properly drafted and all financial details are not accounted for, you stand to lose everything for which you tried to adequately plan. If you are considering a prenup, you should contact an experienced attorney who will be able to evaluate your agreement, advise you of the possible alternatives and assist you in protecting your rights.

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prenuptial agreementPremarital agreements, often call prenuptial agreements, are contracts entered into by two people planning to be married. Although the agreement does not take effect until marriage, it must be prepared and signed well in advance of the wedding. With the increasing prevalence of divorce, more and more couples are choosing to record their intentions in this way, especially if they are marrying later in life, when they have built up more assets, or if they have been married before and have children from a former union, whose inheritance they wish to keep intact.

The Elements of a Binding Premarital Agreement

Most premarital agreements spell out the assets and debts of the spouses-to-be, and set a plan for how property will be shared once they are married, and later, if they are separated through death or divorce. Often, a premarital agreement will address whether alimony or maintenance will be paid by either spouse in the event of a divorce.

Illinois has adopted the Uniform Premarital Agreement Act, which is the same across over 25 states. Under the Act, to be enforceable, an agreement must be in writing and signed by both parties. Although premarital agreements are generally allowed and upheld in Illinois courts, they can be overturned if the agreement was not entered into voluntarily, or if it was “unconscionable” when it was signed. If either spouse failed to disclose their property or financial obligations, the whole agreement could be rendered void.

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effectiveness of a prenuptial agreementThese days, many people contemplating marriage consider entering into a prenuptial agreement. This legal document was traditionally used almost exclusively by the very wealthy in order to protect their assets in the event of divorce. However, it is increasing in popularity among people with average income today in order to set expectations and come to an agreement on certain terms in the event of divorce long before a marriage ever breaks down.

While such a conversation may be uncomfortable for a couple to have as they are planning to spend their lives together, the taboo that used to be associated with entering into a prenuptial agreement may have faded somewhat in recent years. This is good news for those who may be interested in entering into such an agreement, but one question remains: how effective is the document in successfully determining each spouse’s rights in the event of divorce and being held valid in the face of challenges?

Safety of a Prenup

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Posted on in Family Law
same sex prenuptial agreementThe battle to legalize same-sex marriage has been ongoing for years, perhaps decades, and is just starting to be realized with laws going into effect in multiple states across the country that support marriage equality. Many advocates of gay marriage surely view these recent advancements as achievements, but even aside from the states that have not legalized gay marriage, this recent legal shift is presenting other challenges and issues to address.

Essentially, the legalization of gay marriage also involves the application of other legal concepts to the marriage that also apply to heterosexual couples. Some areas of law are not yet amended or modified to properly address the issue of gay marriage, but others are and can likely readily be applied. For example, current divorce laws may fall short in many aspects when applied to same-sex couples, but same-sex couples should not have a problem entering into a valid prenuptial agreement.

Prenups for Same Sex Couples

While the legalization of same-sex marriage has been considered a victory by many advocates for marriage equality, other aspects of family law relevant to the topic may not stir up such positive emotions. Realistically, discussing topics such as divorce and premarital agreements may not be as desirable as fighting for marriage equality, but they are realistic and practical aspects related to the topic nonetheless. According to a recent article, some advise same-sex couples to seriously consider entering into a prenuptial agreement prior to getting married.

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prenuptial agreementPrenuptial agreements are gaining popularity and are no longer seen as being exclusively for the wealthy. Many people want to ensure they are protected prior to entering into marriage and may have good reason to do so. However, not all prior prenuptial agreements are upheld in the event of divorce. Oftentimes, the spouse who signed the prenup will challenge its validity in order to have the agreement declared invalid so they will not be held by its terms. The question arises: what makes a prenup invalid in the state of Illinois?

Illinois Law

Illinois law regarding the validity of prenuptial agreements changed in 1990. As a result, agreements signed before 1990 are held to different standards for validity than those signed after January 1st of that year.

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marriage finance, debt, retirement, financial planning, Illinois family law attorneyThe time a couple spends engaged before their wedding ceremony is a special period of their relationship. Many discussions center around wedding planning, their love for one another, and their future plans. One conversation topic though that may be less popular is the sobering reality of finances. Even though a discussion about financial matters may not be as appealing as others during an engagement, it is an important one to have. A recent article gave engaged persons some advice on what questions to ask their future spouse when it comes to money matters.

10 Questions to Ask while Engaged

What is your credit score? This is an important piece of financial information since both of your credit scores may affect your ability to start a family, purchase a home, or buy a car. It is best to know what to expect going into your marriage and not after you have applied for a loan.

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cheating, infidelity, divorce, lawyer, attorney, DuPage CountyIt seems cheating is a relatively prevalent topic among couples, especially for those who are experiencing marital trouble. Different circumstances within a relationship can lead to infidelity, and cheating does not necessarily equate to the end of a relationship. Once cheating occurs, the partner that was cheated on may wonder how, or if, the situation could have been prevented entirely. While not every relationship pitfall can always be avoided, a recent article discusses a new trend that many couples are employing in an attempt to curb poor behavior, and to plan for the outcome of such an incident if it does occur.

 Lifestyle Clauses A new trend in the legal world involves adding what is known as a lifestyle clause to pre- or postnuptial agreements. These clauses typically contain guidelines for spouses to follow within their marriage. Beyond the general purpose pre- and postnuptial agreements serve regarding finances, lifestyle clauses address non-financial aspects of marriage and can cover any variety of topics. While the clauses themselves focus on behavior requirements within a marriage and do not deal directly with finances, there are often financial penalties for violating them. One of the most popular topics covered by lifestyle clauses is infidelity. Beyond emotional reasons, there are practicals reasons for including such a clause into an agreement as well. Some states have changed their divorce laws to no longer include fault, such as adultery, as a factor in calculating alimony payments and in dividing assets. Even though adultery can be grounds for a fault-based divorce in these states, the unfaithful spouse will not typically suffer financial consequences for cheating. It is important to note that any lifestyle clauses contained within an agreement must be consistent with state law regarding pre- and postnuptial agreements.  Issues Brought up by Lifestyle Clauses Some issues to consider in enforcing a lifestyle clause include how to define cheating and to what degree such behavior has to be proven. Different people may consider different behavior as infidelity. Sexual intercourse is the most obvious, but what what about sexual behavior that falls short of intercourse? What about suggestive e-mails or texts? These are issues that could potentially be addressed within a lifestyle clause, but not every situation can be anticipated.  Court Rulings on Infidelity Clauses Challenges to infidelity clauses in court have produced mixed results. Some state laws that support no-fault divorce find such clauses contrary to public policy. Other states where infidelity laws are enforceable will uphold the clause as long as the cheating can be proven and the clause does not otherwise violate state law. The problem lies with being able to prove infidelity. In most instances, hard proof of such conduct simply does not exist, or is exceedingly difficult to produce. On the other hand, the effectiveness of infidelity clauses is apparent when a cheating spouse does not want details of an affair discussed in court.  Can the Clause Prevent Cheating? Whether employing the use of such a clause in an agreement actually deters cheating is difficult to say with certainty. However, it is possible. It is more likely that the existence of such a clause will start a discussion about the issue between the parties regarding their feelings, needs, and expectations about the relationship. In short, the clause can be beneficial to the couple even if it would ultimately be unenforceable in court. It is imperative that any agreement contain a severability clause in order to uphold the remainder of an agreement in the event the court rules one provision is invalid.  Divorce Attorney If you are contemplating marriage and are curious how a prenuptial or postnuptial agreement may benefit you, an experienced family law attorney in Illinois may be able to assist you. The experienced lawyers at Davi Law Group, LLC are prepared to discuss your case with you. Feel free to contact us today to schedule a consultation.

prenuptial agreement, lawyer, attorney, divorce, marriage, prenupOften times, when two people in love are engaged and planning a wedding, planning for a possible divorce is the last thing on their minds. Even if the possibility of a future divorce has crossed their minds, they will likely avoid taking the step of suggesting a prenuptial agreement as doing so may result in not only hurt feelings, but potentially a broken engagement.

 Many people simply do not want to consider the possibility of a divorce down the road when they should be focused on planning for a lifetime together. However, those in the legal field or people who have gone through a divorce may try to convince them otherwise.  Why Agree to a Prenup? Essentially, a prenup is a contract by which two parties set out the terms of a possible divorce before getting married. And, as a recent article states, doing so makes a future divorce much simpler by clarifying the terms in advance. Prenups can clearly set out property division between the parties to a divorce, the length of spousal support and maintenance, and support for any children that may have been born outside of the marriage. Likewise, if any children born prior to the marriage are named as beneficiaries of retirement accounts, a spouse can later challenge the designation unless they agree in a prenup to sign a waiver after the marriage. Prenups may also be considered as a back-up to a will, or as evidence of your intentions in the event that your will is challenged. If your prenup represents an agreement of terms to which your spouse has consented in advance, it makes the success of any future challenge to your will less likely.  Prime Customers Often, it is not young couples marrying for the first time who are concerned with securing a prenup. Rather, it is typically older couples who may have already gone through a divorce and are remarrying who make sure they have a prenuptial agreement this time around. Not only have many older people experienced the complications of divorce first-hand and lived through the emotional and financial burdens associated with the process, but later in life people usually have more to protect. There are situations in which one party has amassed great wealth over their adult years and the other is not as financially stable. A prenup is essentially for guaranteeing that those assets will be protected in the event of a divorce. Prenuptial agreements can also protect one partner from the debt of the other, or they can protect children from a previous marriage.  Preparing a Prenup There are important requirements for preparing a prenuptial agreement that must be followed in order to avoid the agreement later being challenged by one of the parties in court. The following are some notable requirements that must be followed for a valid prenup:
  • Full disclosure of assets and debts possessed at the time of the agreement;
  • Presentation of the document well in advance of the wedding date, and free of any strict deadlines. The party signing cannot feel pressured into signing the document. Both parties should have ample time to study the terms; and
  • The terms contained within the agreement must not be unconscionable, or too one-sided, in light of the circumstances at the time it is signed.
If you are considering obtaining a prenuptial agreement, an experienced family law attorney in Illinois can help ensure your agreement will be upheld in court. Contact the attorneys at Davi Law Group today for a consultation.
LaraPrenuptial agreements, or premarital agreements, have the illusion of being solely reserved for the famously wealthy.  However, that really is not the case.  Many everyday people have found that prenuptial agreements can be beneficial in the event of a separation or divorce.  There are both pros and cons of prenuptial agreements. Premarital agreements are the tools that determine what each spouse has in non-marital property in the event of a divorce, legal separation, or the death of a spouse.  They are founded upon contract law. Prenuptial agreements can be beneficial in that they can ultimately reduce the cost of potential litigation by defining a couple’s property rights.  As far as cons go, prenuptial agreements can lead to unfair bargaining and failure to disclose the extent of all property. Prenuptial agreements allow for wealth to be passed down to children from prior marriages. This also applies to those older people who decide to remarry; they may choose to leave their “lifetime’s worth of wealth” to children from a previous marriage. In the event of one spouse entering a marriage after years of running a business, a prenuptial agreement can protect the business against unwanted involvement. However, those parties who helped build a business during marriage can sometimes be at a disadvantage because of this.  In general, the courts will grant business-building spouses fair, equitable amounts. Prenuptial agreements can have both beneficial and detrimental consequences.  If you and your soon-to-be-spouse are considering creating a premarital agreement, be sure to contact an experienced Illinois family law attorney to ensure that yours is fair to all involved parties.
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