From Prenuptial Agreements to Divorce
From Prenuptial Agreements to Divorce
Whether you are planning to get married –or in the midst of a separation leading to a divorce, there are certain factors to consider before saying “I do,” or undoing the marriage you thought would last forever. Lois Kulinsky, principal of Kulinsky & Associates Ltd in Wheeling has some sound advice to keep in mind before taking either step.
What Should I know About Prenuptial Agreements?
Prenuptials are advisable when one spouse has many more assets than the other. For example, if one spouse has a trust fund or owns property, he or she may want to make sure these assets are not considered marital assets under the divorce law.
For those couples tying the knot for the second time, prenuptial agreements are crucial. Each spouse wants to protect their assets so upon their death or upon their divorce, their assets can be given or kept for their own children or grandchildren.
It is wise for each spouse to be in control of their own affairs. When a prenuptial agreement is drafted properly, it is fully binding. “An agreement can be challenged if a court finds a provision in the agreement is ‘unconscionable.’; This may mean, there is a term or terms in the agreement that were obtained under duress,” says Kulinsky.
Sometimes, a court might find a provision in the prenuptial agreement to be invalid based on current conditions. For example, a spouse waived maintenance payments in the prenuptial agreement, but due to illness during the marriage, she/he is unable to work. In cases like these, the court may hold a waiver of maintenance invalid and require spousal support at the time of the divorce.
“When prenuptial agreements are well written, it is difficult for a judge to find the agreement invalid,” notes Kulinsky “and each spouse’s assets are protected.”
What Should I Know If I’m Considering A Divorce?
Divorces can occur within a matter of weeks if both partners agree or they can take as long as four years. Many divorces take years to settle due to arguments over the custody of the children and the division of assets.
“Who has custody of the children is more than just determining where the children live and establishing a visitation or parenting schedule with the other parent. In some divorces, the children spend equal time in both parents’; homes,” Kulinsky says.
Besides determining where the child or children will live, there are the issues of: religion, education, medical/dental treatment and daycare providers. Of course, who gets the children on holidays is an important part of any divorce settlement.
When parents agree to joint custody, both parties are actively included in raising their children and making these major decisions. Meanwhile, day-to-day decisions are made by the parent with whom the children reside.
One major issue concerning the children is how much child support will be available to provide for the children. Under Illinois law, there are specific guidelines, which are minimums that the court must consider in setting child support. “These minimums range from 20% for one child, 28% for two children, 32% for three children and so forth. If a child has special needs, the court can order child support in excess of the minimum guidelines,” Kulinsky says. Included in special needs are the needs of emotionally or physically challenged children, therapy or counseling expenses, special tutoring and special schools.
Illinois law also requires both parents to pay for their children’s undergraduate college education expenses based upon their resources and abilities to pay. This is separate and apart from child support.
Other Divorce Issues –
Divorce can be complicated. Serious issues can emerge during or after the divorce is even finalized. You may want to discuss with your lawyer: increasing child support through the years, what happens when a former spouse becomes unemployed and has been paying child support, or what happens if the spouse with custody of the children wants to move out of state.