A prenuptial agreement is a useful document to have on hand if you and your spouse ever divorce. Though preparing for a hypothetical divorce seems awkward, it can be easier to come to an agreement now on how to divide some assets than it would be during a divorce, when you may feel less inclined to cooperate. The prenuptial agreement creates a framework for a divorce agreement, which would save you some time during a divorce. However, there are limitations to what a prenuptial agreement is allowed to do in Illinois. If you create an agreement that breaks the state’s rules, then your agreement will be invalid once it comes time to use it. Here are three things you cannot do in a prenuptial agreement:

1. Settle on Parental Responsibilities and Child Support: A prenuptial agreement cannot decide how you will allocate parental responsibilities or divide child support. The parenting plan in a divorce must serve the best interests of the children. You cannot know in advance what division of parenting time will be best for the children, especially if they are not even born yet. Illinois calculates child support using a formula based on both parents’ incomes. You cannot decide that one parent would pay less child support than what they are legally obligated to pay.
2. Create Unjust Financial Terms: As an equitable division state, Illinois does not require divorcees to divide their marital properties exactly evenly. This gives you some flexibility in your prenuptial agreement if you want to protect assets from going to your spouse. However, the financial result of the agreement must be fair and equitable to both sides. A divorce court would not uphold a prenuptial agreement that unjustly divides marital properties to the point that one side seems to be taking advantage of the other. This extends to spousal maintenance. You can waive your claim to maintenance in the agreement, but a court will not enforce it if it would cause you unreasonable hardship.
3. Incentivize Divorce: Many courts will reject a prenuptial agreement that seems to give a financial incentive for the parties to divorce. Basically, the courts do not want a prenuptial agreement to encourage people to divorce. Knowing that you would receive a financial windfall from your agreement could influence your decision on whether to divorce. It will be up to the court to judge whether your agreement violates this principle.

Contact a Kane County Family Law Attorney

You cannot predict the many ways that your financial circumstances could change during your marriage, which could affect how you view your prenuptial agreement. However, including conditions that violate Illinois law is certain to make the agreement invalid. A St. Charles, Illinois, family law lawyer at Goostree Law Group will make sure that your prenuptial agreement is fair and complies with the law. Schedule a free consultation by calling 630-584-4800.

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“Palimony” is a term sometimes used after a couple has ended a long-term relationship in which they lived together without marriage. There are different definitions for palimony because it is not an official legal term but a play on words using “pal” and “alimony.” The basic definition is that it is the equivalent of spousal maintenance for cohabiting couples. Some expand that definition to include each party’s right to shared properties from the relationship. Illinois residents need to know that the state does not recognize palimony as a right between unmarried couples but that they can establish property claims by creating a cohabitation agreement.

Palimony Rulings

A 1979 Illinois Supreme Court ruling on the case of Hewitt v. Hewitt is often cited as a landmark decision that set the precedent on issues such as palimony. Since the early 1900s, Illinois has outlawed common law marriage, a practice that recognizes long-term domestic partners as effectively married. In the 1979 case, the Supreme Court found that cohabitation does not grant people the same rights to property and financial support as they would receive if they had been married. The Supreme Court was asked to reconsider this ruling in 2016 with the case of Blumenthal v. Brewer but upheld its original decision. Because of these rulings, cohabitants living in Illinois have no legal claim to palimony because it would give them the same benefits as spousal maintenance.

Cohabitation Agreements

How do you protect yourself financially in Illinois in the event that you break up with your partner who you have been living with? One way is to cosign when purchasing major properties such as a home, which gives you shared ownership of the property. Another way is to create a cohabitation agreement, which is similar to a prenuptial agreement in a marriage. In the cohabitation agreement, you can settle several issues on how to divide shared properties and expenses, including your:

You are allowed to modify the child support order from your divorce at any time as long as you can show that there has been a significant change of circumstances that makes the modification necessary. The change of circumstances is usually a change in the income of one of the parents or a change in the cost of supporting the children. However, a change in the division of parenting time may also be enough reason to modify your child support payment.

Shared Parenting

Illinois has a modified version of its child support formula that it uses when parents have a 60-40 division of parenting time or less, which qualifies as shared parenting. The paying parent does not need to provide as much support to the other parent because they are directly paying for more of the children’s expenses. Thus, it is appropriate to modify child support payments if the division of parenting time reaches the shared parenting threshold.

No Time Limit to Modify

A recent Illinois case shows that courts can misapply child support laws in ways that need to be corrected. In the case of In re Marriage of Izzo, a man sought to reduce his child support payments to his former wife based on three changes of circumstance:

A prenuptial agreement is a useful document to have in the unfortunate event that you ever decide to divorce. With all of the turmoil in a divorce, it can be a relief to have some of the negotiation work already complete. However, a prenup should not be a static agreement that you do not examine unless a divorce occurs. Your financial means and needs have changed since your marriage began. At worst, you may discover that your agreement is obsolete once it comes time to use it. You should periodically check your prenuptial agreement during your marriage and update it if necessary.

Division of Property

A prenuptial agreement can list which items will be included in your division of marital property and who will receive them. Many of the properties listed in your original prenuptial agreement are nonmarital properties because you owned them before your marriage. When modifying your agreement you can:

• Add major properties that you have accumulated since the start of your marriage;
• Remove properties that you no longer own; and
• Update the value of the properties that were already in the agreement.

For instance, it is common for a spouse’s business to increase in value since the time when they created the agreement. The division of property in the agreement may now be unbalanced because of that change in value. The spouses can renegotiate whether they will share ownership of the business if they divorce or agree to give the other spouse more properties as compensation.

Both legal parents have a financial obligation to support a child from the time it is born, even if one of the parents is not an active part of the child’s life. Child support is a common aspect of divorce but can be more difficult to establish when the parents were never married. A father can submit a Voluntary Acknowledgement of Paternity, or the mother may file a petition to establish paternity. In disputed paternity cases, the court can order the father to pay retroactive child support if it legally establishes his paternity. The retroactive payments could go back to the date of the initial court filing or the date of the child’s birth.

Reason for Retroactive Payments

Retroactive child support commonly starts on the date that the parent filed a petition to establish paternity or to establish child support. In most cases, the mother is the one who is attempting to force the father to take financial responsibility for their child, though a father could file a petition to establish child support from an absent mother. Illinois allows retroactive child support orders to prevent a parent from avoiding their financial obligation by prolonging the court case. A paternity case can take months to settle and can be extended with other legal actions, such as appeals.

How Far Back Can Payments Go?

Illinois law allows courts to extend retroactive child support payments to dates before a parent filed a petition. Courts have interpreted this as the authority to start the retroactive payments as earlier as the child’s birth. The law lists several factors that courts must consider when setting the start date for retroactive payments, including: