Gitlin Law Blog

Premarital Agreements

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

A: 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.

Q: What is the short of it?
A: 1.   If you are careful to keep assets, such as real estate, stocks, bonds, etc. in your own name you do not need a premarital agreement.

 2.  If you have non-marital income, 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. 

 3.  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. 

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

For more information on maintenance (alimony) and division of property, visit Gitlin, Busche & Stetler, Woodstock, Illinois lawyers website.

H. Joseph Gitlin covers the practice of family law in Illinois.  Mr. Gitlin is the author of Gitlin on Divorce Reports, which summarize current Illinois opinions.  Click here for Gitlin on Divorce Reports information or contact the office at (815) 338-0021.   Mr. Gitlin's book, Gitlin on Divorce, A Guide to Illinois Matrimonial Law is a necessary tool for lawyers and legal assistants involved in family law and for judges hearing matrimonial cases. 

PreMarital Agreements

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

A: 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.

Q: What is the short of it?
A: 1.   If you are careful to keep assets, such as real estate, stocks, bonds, etc. in your own name you do not need a premarital agreement.

2.  If you have non-marital income, 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. 

3.  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. 

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

Before Marriage: Do You Need A Premarital Agreement?

 In my years practicing family law I have been asked several questions regarding premarital agreements. Here are some of the reoccurring  questions I have encountered along with some answers that you might find helpful.

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

No. To protect against 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 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?

Basically two things:

A premarital agreement can address what will happen in the event of a divorce

A premarital agreement can also, in relation to your widow, fix distribution of assets upon death

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 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, these assets will remain 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 would be entitled to one-half of your estate and the other half will go to your children, but if you had no children the entire estate would 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.

Premarital Agreement Q & A Recap:

1. If you are careful to keep assets, such as real estate, stocks, bonds, etc. in your own name you do not need a premarital agreement.
2. If you have non-marital income, such as investments before the marriage, or gifts or inheritance you receive during the second marriage, you should keep them strictly in your own name and not put them into a joint account.
3. 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.
4. If you feel that after about ten years of marriage your spouse may be entitled to maintenance you do not need a premarital agreement -- unless you wish to control the amount and duration of maintenance.