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PreNuptial Agreements

Chicago Prenuptial Attorney

Pre-Nuptial Attorney

Prenuptial Agreement

A prenuptial, also known as an antenuptial and most commonly as a “prenup” is a contract entered into between parties intending to marry, though in some states they can apply within the context of a civil union. The primary purpose of the prenup is to provide for a division of assets in the event of a divorce. They often include provisions regarding alimony or maintenance and also may refer to estate planning.

Some prenups can essentially provide that “what’s his remains his and what’s hers remains hers. Either party can leave their assets upon death to whomever they choose.” For this basic type of prenup to work, parties must keep their assets segregated. Add a provision that assets commingled are divided equally upon divorce.

Sometimes the marital residence is treated differently than other assets. Assets accumulated during the course of the marriage are often treated differently as well. Also, children begat to the couple can change the equations of the prenup.

Before throwing cold water on a relationship, the goal of anyone proposing a prenup to their fiancé should be enforceability. Both parties should be represented by counsel, though one of the parties may waive that right. If there is a major discrepancy in assets, then it is better for the wealthier party in whose interest it is for the prenup to be enforceable to insist that the poorer party obtain competent counsel. Of course, this also may increase legal fees.

A valid prenuptial agreement must be in writing. It must be voluntarily signed by both parties in accordance with state law (usually requiring a notary public), rather than under duress. It should be signed as far in advance as possible, because the closer the wedding, the more likely that one of the parties can allege duress. The parties must also substantially disclose all of their assets. Without the wealthier party adequately disclosing assets, how can the poorer party truly know what he or she is waiving in the agreement?

Though prenups are a powerful asset protection tool, even the most perfect one, suitable for framing, can be challenged as unconscionable and disregarded by a judge who is sympathetic to an aggrieved spouse.

My considered advice is that if you are truly afraid of losing your assets, especially based upon the behavior of your spouse-to-be and depending only on a prenup for protection, you are better off not getting married.

Once a couple is married, they may enter into a post-nuptial agreement, which is generally less enforceable that a prenup, because of the greater likelihood of duress.

If you live in the Chicago or Lake County area, and need an experienced prenuptial attorney, please contact Matlin Law Group, P.C..