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Pre-Marital and Post-Marital Agreements

Premarital Agreements

A premarital agreement attempts to set forth a husband's and wife's rights and obligations in the event of a divorce before the marriage.  Not only are premarital agreements often a touchy subject, they often do not provide significantly more protection than a carefully maintained set of books and a good divorce lawyer.  If you are going to use a premarital agreement, though, make sure to understand what the agreement can and cannot do and how the premarital agreement should be executed.

Do I need a premarital (“prenuptial”) agreement? This is my second marriage.

Maybe. To protect against a divorce, you do not necessarily need a premarital agreement. You will not need a premarital agreement if, during your second marriage, you are careful how you structure the ownership of your assets.

Doesn't my spouse automatically obtain an interest in my premarital assets once we are married?

No.

What can I accomplish with a premarital agreement?

There can be a waiver of maintenance (alimony), or mainetnance payments can be agreed upon.

You can agree to a distribution of your property.

Without a premarital agreement how can I protect the assets I now own in the event of a divorce?

As long as you keep your premarital assets in your own name, and do not put them in any form of co-ownership with your spouse, and do not pay any money owing on the premarital asset (for example mortgage on a house) with funds you are earning as a result of employment or income from any marital property, these assets will remain your non-marital assets without a written premarital agreement.

Can I protect my assets from going to my widow without a premarital agreement?

No, but the amount of your estate that goes to your widow is limited by the law. If you have no will your surviving spouse will be entitled to one-half of your estate and the other half will go to your children, but if you have no children the entire estate will go to your surviving spouse.

Upon my death, can't I protect my assets from going to my widow by drafting a will leaving her nothing, or leaving her only a small amount?

No. Your spouse can renounce your will and she would be entitled to share one-third of your estate if you have descendants, or one-half if you leave no descendants. By a premarital agreement, however, a spouse may give up all her rights to your estate, including the right to renounce your will and take her statutory share.

In the event of a divorce, can I protect myself against a claim for maintenance (alimony) with a premarital agreement?

Yes. You can either limit, or eliminate the claim for maintenance by a premarital agreement. The likelihood, however, is that if you are divorced within ten years and your spouse is in good health, there would not be an award of maintenance, or the maintenance would be for a small amount and for a short term.  But, if you want certainty, have a premarital agreement.

What is the short of it?

If you are careful to keep non-marital assets (premarital, gifts and inheritance), such as real estate, stocks, bonds, etc. in your own name you do not need a premarital agreement.

If you have non-marital assets, such as investments before the marriage, or gifts or inheritances you receive during the second marriage, you should keep them strictly in your own name and not put them into a joint account.

If you are satisfied with the way the law will distribute your assets upon your death, with or without a will, you do not need a premarital agreement.

If you feel that after about ten years of marriage your spouse should be entitled to maintenance you do not need a premarital agreement — unless you wish to control the amount and duration of maintenance.

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