YOU CAN TAKE IT WITH YOU
by Marilyn Longwell
When spring is in the air, I get requests for prenuptial agreements. These are used much more often than they used to be, and I believe they are a wonderful way to start a marriage. No matter the person’s assumptions initiating a prenuptial agreement, both sides come out when discussing the agreement. Inevitably, each person must examine what assumptions they’ve made and what role each will have in their planned marriage.
Couples usually plan on moving soon after marriage, often to a different state. One of the functions of a prenuptial agreement is to make it clear upfront what each person expects should the marriage fail, and they wish to divorce. When marrying and then moving out of state, many couples don’t consider what would happen if they divorced at some point. They can control many things in a prenuptial agreement, from marital versus non-marital property, how they would expect to divide the property, whether either would pay the other alimony (maintenance), and other obligations if they divorce.
What is not covered is children. Premarital agreements cannot control the custody of children, nor the amount of child support paid or not paid by either person. Children’s fate and custody to the extent that the parents do not agree at the time of a divorce is a matter for the judge to decide. In these cases, determining a child’s welfare is the court’s province.
Nevertheless, a couple can make some plans if the marriage doesn’t work. One of those topics is the law that will control a divorce. A provision in most, if not all, prenuptial agreements is called “Choice of Law.” In this section, the parties can stipulate that, should they divorce or have other issues in abiding by the provisions of their agreement, then the agreement will be enforced and interpreted under Illinois law as opposed to automatically operating under the laws of whatever state they have moved to.
Why is this good? You might ask. This means if you’re married in Illinois and have a prenuptial agreement drafted under Illinois law, you can elect in the agreement that wherever you are, it will be interpreted and enforced under the Marriage and Dissolution of Marriage Act of the State of Illinois. This makes any legal action between you easy to interpret and enforce by referring to Illinois law. That means the results are more easily interpreted and predicted based on the law in Illinois. Also, the Illinois Marriage and Dissolution of Marriage Act has many advanced and beneficial provisions to the divorcing parties.
Illinois is a “no-fault” state, and the only grounds for divorce are currently irreconcilable differences. Although not required, a physical separation of more than 6 months is considered presumptively evidence of irreconcilable differences. Furthermore, the statutes on child support and maintenance are clearer than in many localities, meaning a lower likelihood of a fight over the financial portion of the case. These legal factors reduce the number of cases that go to trial.
Child-related issues are similarly less likely to result in a trial. The Illinois statute does not use the word “custody” regarding parents’ rights. Instead, the parents divide, or share, decision-making on religion, education, healthcare and extracurricular activities. Therefore, no one loses “custody” because there is no such thing as custody between the parents.
So, the only question left is, why would you want to make any future issues between you less predictable if you plan to move to another state or perhaps multiple states during your marriage? The whole purpose of a prenuptial agreement is to flesh out now what disagreements you may have if your marriage ends. With the “Choice of Law” provisions, you have much more predictability no matter where you live in the future. So, you can take it with you.
And whatever happens, you can live happily ever after!
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