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Chicago Divorce and Prenuptial Agreements

Chicago Divorce and the Importance of Prenuptial Agreements

By M. Scott Gordon

How important are prenuptial agreements when it comes to divorce in Chicago? According to a recent article in USA Today, it’s important for Chicagoans who are planning to get married to think ahead, regardless of their socioeconomic brackets. To be sure, prenuptial agreements, also known as premarital agreements, aren’t just for wealthy Illinois residents. Why is that? Premarital agreements simply are not solely about the assets that a couple has or may acquire.

Using Premarital Agreements to Negotiate Beyond Financial Assets

Even though couples typically don’t want to negotiate about “what if” situations before a wedding, many marriages continue to end in divorce. And even if a marriage lasts for many years, a prenuptial agreement can be extremely important in determining debt liabilities, childcare and child-raising issues, college contributions for children born during the marriage, and other family matters.

Under the Illinois Uniform Premarital Agreement Act (750 ICLS 10/), spouses can use prenuptial agreements to negotiate about some of the following issues:

  • The right to buy, sell, and alter properly
  • Disposition of property in the event of separation
  • Modification or elimination of spousal support

The statute provides other specific elements that can be included in premarital agreements, including a broad category of “any other matter, including . . . personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” The statute does make clear, however, that a child’s right to support “may not be adversely affected by a premarital agreement.” In other words, soon-to-be spouses cannot negotiate about child support.

Types of Situations Where Prenups Can Make a Difference

Prenuptial agreements can make divorce easier, regardless of the specifics of your situation. In short, divorce often involves contested claims to property and other assets, and a prenup can settle such matters quickly. However, there are some situations where a premarital agreement can make a big difference. In addition to marriages in which one spouse has significantly greater assets than the other (a typical situation in which premarital agreements exist), consider the following hypothetical situation:

At the beginning of a marriage, a husband is responsible for the care of an aging mother. He has assumed the financial burden of caring for his mother, including paying for a housekeeper to come to her home twice a week. After five years into the marriage, the health of the husband’s mother declines significantly. He begins using money from his joint bank account with his wife—the only account both use, and in which they both directly deposit their paychecks—to pay for in-home nursing care.

Within a year, the husband’s mother requires care at a Chicago-area nursing home. The facility costs thousands of dollars a month, and the husband begins paying for his mother’s care from the couple’s joint account. The wife agrees reluctantly.

Shortly thereafter, the couple decides to divorce. By this point, a significant amount of the wife’s income has been used to pay for her mother-in-law’s care. If the couple had entered into a premarital agreement about the care of the husband’s mother, the wife wouldn’t have had her own income depleted. Indeed, this is precisely the type of situation in which a prenup could have been extremely beneficial to the wife.

This is just one situation where a spouse could have benefited from a premarital agreement. Many other situations—and very different ones at that—exist in which a prenup simply is a good idea to protect a spouse in the event of divorce. If you have questions about creating a premarital agreement or are thinking about filing for divorce, you should contact an experienced Chicago divorce lawyer. The attorneys at the law offices of M. Scott Gordon & Associates are here to help.