While it has become more common to have them, the truth is that not every couple needs a prenuptial agreement (also referred to as a prenup).
Some couples (or individual partners) insist, but in many cases, there is not enough between the two people to warrant a careful, item-by-item disposition, which is often what a prenuptial agreement turns out to be. Before spending the time and expense on creating one, it is a good idea to ensure that a prenup is actually necessary for your financial health.
Do You Have Extensive Assets?
As one might imagine, couples with significant assets individually or between them will benefit from a prenuptial agreement in multiple ways. Perhaps the most common is in dealing with property division issues during divorce proceedings—Illinois adheres to the theory of equitable distribution, meaning that all marital property is divided in the most equitable or fair way possible, rather than giving each spouse half as might happen in a community property state.
A prenuptial agreement is one of the easiest and most common ways to clarify whose assets are whose before the marriage, meaning that all those assets will be classed as nonmarital property (unless the court handling your divorce disapproves) and thus not subject to division.
Another way prenups help those with extensive holdings is to provide a way to track assets that become commingled with marital property. If you had a certain sum of money before the marriage, listing it in a prenup may help you retain it in divorce, even if normally commingled money becomes marital property if used to further the marriage (such as paying bills with it or remodeling a home). Some couples are agreeable to such assets becoming marital property. Still, if you would rather retain it, mentioning it in a prenup may be enough to accomplish that goal. The divorce court does have discretion to deny that provision, however.
Have You Been Married Before? Will You Marry Again?
The other group of couples that can benefit substantially from a prenuptial agreement are those who have been previously married to others, or if there is a possibility that either spouse would marry again if the marriage were to break up. Without a prenuptial agreement, assets are divided between the spouses in an equitable fashion—but this may be insufficient or unacceptable if one or both spouses have children from a previous marriage. The children may want to preserve or retain their parent’s premarital asset, but the court may grant that asset to the other spouse unless specifically provided.
The same logic can be applied to protecting one’s assets in the event of a remarriage (either of your ex-spouse’s or your own). Illinois uses the Uniform Premarital Agreement Act to govern prenups in the state, which makes no mention of property with regard to anyone but the two spouses. As such, it has been deemed appropriate to make decisions regarding retaining certain assets, as long as it is held not to interfere with a child’s right to support, which may not be changed or affected by a prenup in any way.
Contact a Knowledgeable Attorney
Prenuptial agreements are a smart tool to make use of, but if you have neither extensive assets nor a previous marriage or children, you may have no need for one. If you are unsure, it is best to ask an attorney. The dedicated DuPage County prenuptial agreement attorneys at Roscich & Martel Law Firm, LLC are happy to answer your questions. Contact us today to set up an appointment.