Prenuptial Agreements and Spousal Support

 Posted on March 30, 2016 in Prenuptial and Postnuptial Agreements

Every year, thousands of couples throughout Illinois formally legalize their relationship through the institution of marriage. As the average age of first marriage continues to rise, along with the increasing rate of remarriage, prenuptial agreements are also becoming more common than ever. In many ways, this makes sense, as today’s single men and women have had more time to earn money and accumulate assets than in generations where younger marriage was prevalent. Remarriage, of course, presents its own challenges, including children from a previous relationship and increased focus on retirement and estate planning, and prenuptial agreements are advisable for these types of situations as well.

Agreements Regarding Maintenance

Spousal maintenance, or alimony, as it is sometimes called, is one of the most common issues addressed in a prenuptial agreement. A couple may agree, before ever getting married, that maintenance either should or should not be paid in the event of a divorce. They may also address criteria under which maintenance would be required—such as a so-called lifestyle clause or an infidelity penalty clause. Should the couple get divorced, the court presiding over the proceedings is required to take into account any valid agreement between the parties, including prenuptial agreements that address spousal maintenance.

Unforeseen Circumstances

By their very nature, prenuptial agreements cannot reasonably account for any and all future possibilities. While reasonable terms of such an agreement will almost always be enforced, there are some situations in which a valid contract that was considered fair at the time it was signed may be set aside in divorce. The Illinois Uniform Premarital Agreement Act provides that a court may override a couple’s agreement to modify or eliminate spousal support in certain cases. The court is only granted such authority if the agreement creates “undue hardship” for one party due to circumstances that could not have been anticipated when the prenuptial agreement was signed.

Hypothetical Example

Consider a fictional, professional couple who entered into a prenuptial agreement stipulating that, thanks to each spouse’s successful career, spousal maintenance will not be sought by either party in the event of divorce. Five years into the marriage, the wife is injured in a fall from a ladder that leaves her permanently disabled and unable to work. She becomes financially dependent on her spouse, who continues to advance in his career. Ten more years later, the couple decides to divorce. The prenuptial agreement that waived maintenance considerations could not have foreseen the wife’s permanent disability and subsequent reliance on her spouse. In such a case, the court may intervene and order maintenance to alleviate the undue hardship, despite the existence of an agreement to the contrary.

Guidance for Your Prenuptial Agreement

While you and your fiancé will never be able to account for every remote possibility, you can still develop a prenuptial agreement that addresses your most pressing concerns. Doing so can afford you the security and peace of mind you deserve as you begin your new life together. For help in drafting a reasonable prenuptial agreement that meets your needs, contact an experienced Geneva family law attorney. Call 630-232-9700 to schedule an appointment at The Law Offices of Douglas B. Warlick & Associates today.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&