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Today, Americans are getting married for the first time later in life than ever before, and there has also been an increase in the number of remarriages. As a result, more and more couples are drafting prenuptial agreements. It is understandable to wonder how age and remarriage affect the need for a prenuptial agreement, or prenup, but the answer is quite simple. Those who marry when they are older—including second and third marriages—generally bring more into a marriage. In this context, “more” does not just mean assets and debts. It also refers to obligations for children, spousal support, and other considerations.
A prenuptial agreement can be a valuable tool that allows both spouses to protect themselves and any children from a previous relationship, but only if the document is drafted and executed properly. Many couples operate under the assumption that their prenup will protect them down the road only to find out that there was a flaw that caused the agreement to become unenforceable. In Illinois, the court may set aside a prenuptial agreement for reasons such as:
- Deception or incomplete disclosure: Before you sign a prenup, you must make a full financial disclosure to your partners, and he or she must do the same. While this can be waived, doing so is rarely a good idea. If you or your spouse leave out or “forget” particular debts or assets, the agreement may not have been based on accurate information, and it may be deemed invalid;
- One party was forced to sign: A prenuptial agreement is meant to be a voluntary contract between the parties. If you were impaired by alcohol or drugs or forced to sign under threats of violence, the court may set aside your agreement. An ultimatum—such as threatening to call off the wedding—is not generally considered to be coercion;
- Lack of counsel or proper consideration: Illinois law does not require both parties to hire an attorney before signing a prenuptial agreement, but having a lawyer at least look over the agreement is a good idea. If your spouse has an attorney and you do not, you could be at a serious disadvantage. It is also important for you to have enough time to read, understand, and agree to the terms of the agreement;
- Extreme unfairness (unconscionability): The provisions of your prenup do not need to be equal for both parties, but they cannot be dramatically one-sided either. For example, if your agreement says that in the event of a divorce, you will assume responsibility for all marital debts while your spouse will receive all of the marital assets, the document is not likely to be enforced.
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Prenuptial agreements have gotten a bad rap for many years. Many hold the false belief that prenuptial agreements are only for celebrities or couples who do not believe in the longevity of their marriage. The reality is that a prenuptial agreement is a valuable legal tool as well as a great way to plan for a couple’s future. Prenups are not only a valuable tool if a marriage ends or one of the spouses passes away, but are also a good way to hammer out the details of how finances will be managed within the marriage.
Prenuptial Agreements Especially Popular with Younger Crowd
A survey conducted by the American Academy of Matrimonial Lawyers suggests that the younger generation of married couples may be more likely to use prenuptial agreements than the older generations. In fact, of the total attorneys surveyed, 51 percent reported an increase in the amount of millennials requesting prenups within the last three years.
Getting engaged to be married is a joyous time for any couple. In the midst of sharing pictures of the ring, scouting out locations for the wedding, and celebrating with friends and family, couples are also faced with a hard choice: Should they create a prenuptial agreement?
A prenuptial agreement, also called a prenup or premarital agreement, is a legally-binding agreement that a couple signs before getting married in order to protect each spouse's financial interests. Some people incorrectly assume that prenuptial agreements are only appropriate for celebrities, the extremely wealthy, and those couples who do not think their marriage will last.
Plan for the Worst
Prenuptial agreements have become popular among marrying couples. One of the most-cited reasons for such an agreement—sometimes called a prenup—is that the couple wishes to prepare for the possibility of a divorce, in the event that it occurs.
Reasons for a Prenup
Divorces in Illinois are fairly common. According to the Illinois Department of Public Health, there were about 69,500 marriages and nearly 29,500 divorces in 2013. Given these statistics, a prenuptial agreement between the spouses that details what will happen if a divorce occurs may be prudent.
Many people are familiar with prenuptial agreements,or “prenups," and some of their pros and cons. However, what most do not know is that they can actually be quite complex and may include much more than standard asset division terms. They are also not as ironclad as popular culture paints them to be. It is imperative that before you enter into a prenuptial agreement, you should have a good understanding of exactly how they work.
What to Include and Leave Out
The are two common reasons why a couple may choose to into a prenup: to protect one spouse from the consequences of the other’s debt or to ensure that provisions are made for the children of a previous marriage. Inheritance laws in most states immediately default to a person’s children from their current marriage, so if there was a promise, for example, to save a personal item for a child of one’s first marriage, it can be advantageous to note that in a prenup. Prenuptial agreements are legally binding unless it can be proven that the agreement is unenforceable.