There is a misconception amongst some newlyweds that a prenuptial agreement is not necessary unless you are rich. It is true that a prenuptial agreement is helpful when spouses have substantial assets. Those with fewer assets may believe that creating a prenuptial agreement is unnecessary or not worth the cost. However, you should not discount the benefits of having a prenuptial agreement, even if your premarital assets seem meager. In the event of a divorce, you may be thankful that you took the time to prepare one.

Need

People think of prenuptial agreements as a tool of the rich because they are most likely to hear about prenups in the media when celebrities get divorced. Owning valuable assets is only one reason to create a prenuptial agreement. Others include:

• Identifying premarital assets;
• Determining how to divide assets that may grow in value; and
• Settling potential property disputes while you and your spouse have an amicable relationship.

It is common sense to want to know all of a person’s assets before you marry them. You should be suspicious if they refuse to divulge them. Some assets, such as a business, are likely to become more valuable in the future. If you created and are running the business, you may want to protect your ownership while also acknowledging that your spouse would deserve compensation for the value of your business. You could wait until a divorce to settle issues such as this, but your spouse may be less open to compromise during the divorce.

When arguing over the allocation of parental responsibilities, one parent may accuse the other of creating parental alienation. The concept, which is sometimes called parental alienation syndrome, is that one parent is encouraging the children to not have a relationship with the other parent for reasons that are illogical or selfish. Parental alienation can be viewed as a form of child abuse, and some parents have used the claim to gain greater or complete responsibility for the children. However, parental alienation is a controversial subject because an abusive parent could use it to gain access to their children.

Potential for Abuse

The professional psychology community is divided on parental alienation syndrome, including:

• Whether it is a psychological condition:
• How it can be identified and proven; and
• How prevalent it is in parenting relationships.

These doubts lead some to believe that parental alienation should not be a major consideration in family courts. Parental alienation has helped decide parental responsibilities in real cases. In some cases, allegedly abusive parents have gained full child custody by accusing the other parent of unreasonably withholding the children. Critics of parental alienation claim that abusive parents are taking advantage of the concept to control their children and punish their co-parents.

Terminating a parent’s rights is not a decision that Illinois courts reach easily or without a compelling reason. A court may restrict a parent’s right to see a child if that parent is unfit or a threat. A disinterested parent can waive his or her right to parenting time and decision-making. However, it is rare for a court to grant a request to voluntarily terminate parental rights – even if both parents agree to it – unless there is another adult willing to adopt the child.

Why Voluntary Termination Is Rarely Granted

The legal parents of a child have both rights and responsibilities that cannot be surrendered or taken away without court approval. Child support is a vital financial responsibility that a court cannot eliminate unless it is terminating someone’s legal status as a parent. If it was easy for parents to voluntarily terminate their rights, some would do so in order to avoid continued child support payments. Instead, Illinois believes that it is in the best interest of a child to have two parents to financially support him or her.

Adoption

A court is more likely to grant a request to terminate parental rights in cases of adoption. The adoptive parent, such as a new spouse, agrees to take on the financial responsibility for the child, which satisfies one of the court’s largest concerns about terminating parental rights. However, the court will not terminate a parent’s rights against his or her wishes. Either the parent must willingly surrender his or her parental rights or the state can petition to terminate a parent’s rights by proving that he or she is unfit in ways such as:

Due to the overhaul of Illinois’ child support law a few years ago, some divorced or separated parents are working under a drastically different child support system than others:

• For child support agreements created before July 1, 2017, the non-resident parent pays a percentage of his or her income, based on the number of children; and
• For child support agreements created since July 1, 2017, the total child support obligation is determined by the parents’ combined incomes, and the non-resident parent pays a percentage of the obligation that is proportionate to his or her share of the combined incomes.

The new child support model would potentially reduce the payments of a parent who was using the previous child support model. However, the existence of the new law is not enough reason to allow a modification of a child support agreement. 

Recent Case

A parent needs to prove a significant change of circumstances to immediately modify a child support agreement, which is usually a change in income or expenses for either parent. In the recent case of In re Marriage of Salvatore, a divorced father thought he had enough of a change of circumstances to allow him to reduce his child support payments. The parents had completed their divorce in 2015, with the father paying $8,100 per month for child support. The mother was unemployed at the time of divorce but had since been employed as an office worker and nurse.

Because of Illinois’ no-fault divorce law, couples can no longer punish each other for acts such as infidelity when filing for divorce. Previously, spouses may have accused each other of immoral behavior in order to avoid paying spousal maintenance or keep a greater share of the marital properties. Now, irreconcilable differences are the only reason that couples can cite for their divorce. Some couples are instead using prenuptial and postnuptial agreements to try to penalize a spouse’s behavior. A lifestyle clause sets rules for a marriage that will result in a financial penalty if either spouse breaks them. However, you should understand the potential problems of lifestyle clauses before you include one in your agreement.

Enforceability

Lifestyle clauses are relatively new, which means that there is little legal precedent for them in courts. The individual opinions of the judge may determine whether a court enforces the clause. Some judges may reject any provision that penalizes a spouse for fault during a divorce. Other judges may allow the clause as long as:

• The terms of the clause are clear;
• The clause applies equally to both sides;
• Both spouses agreed to the clause; and
• The penalty is fair and does not violate divorce law.

It is important to include a severability clause if you create a lifestyle clause in your agreement. That way, the rest of your agreement remains valid even if the lifestyle clause is unenforceable.