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Tips in Regard to Having Valid Prenuptial Agreements, and Subsequent Modifications of Prenuptial Agreements
Prenuptial agreements are contracts, negotiated between the parties and/or their attorneys, that delineate the rights of the parties, including upon death or dissolution of marriage
The same attorney or law firm should never represent both parties in regard to a prenuptial agreement. Even with any purported waiver of conflicts, that may be executed by the parties, the conflict of interest is unavoidable.
Prenuptial agreements should never be the product of coercion, duress, misunderstanding or failing to disclose all the relevant information prior to entering into a prenuptial agreement.
Prenuptial agreements should disclose all relevant information, including, but not limited to, in regard to assets, liabilities, issues or expenses, for an appropriate number of years. Prior to the prenuptial agreement being entered into, there should be exhibits attached to the prenuptial agreement, and incorporated therein by reference, which should exhibits may include financial statements, copies of income tax returns and any other documentation in support of disclosures made in the prenuptial agreement.
In a negotiated prenuptial agreement setting, there should be a paper trail of requested changes to drafts such that there is proof that the final document is actually the result of arms length negotiations and completely understood by all parties prior to execution.
In terms of any final draft of a prenuptial agreement entered into, all pages should be approved by the parties, including by initialing of each party, and signature pages should include affidavits and notaries, not to mention the signatures of any attorneys or law firms involved, at least with respect to their approval as to form.
Prior to the prenuptial agreement being entered into, the parties should confer with their accountants or tax return preparers to make sure they understand any potential tax consequences of the prenuptial agreement.
With respect to any changes or modifications to a prenuptial agreement after same is entered into by the parties, any changes or modifications should be subject to the same process, that is, the parties avoiding conflicts of interests and/or representation by separate counsel, and full disclosure of all relevant facts at the time of the change or modification, with attached exhibits being incorporated into the prenuptial agreement in support of the same. Any changes or modification to the prenuptial agreement should be free of coercion, duress, misunderstanding or failing to discloser all relevant information prior to entering into a change or modification of a prenuptial agreement.
In dividing property, the Illinois court considers all relevant factors including the contribution of each party to the value of the property, particularly the contribution of a spouse as a homemaker, the value of the property distributed to each spouse, the length of the marriage, the financial situation of each spouse when the property is divided, (such as the need to give the family home to the spouse who has custody of the children), any obligations and rights arising from a prior marriage of either party, the age, health, station, occupation, income, vocational skills, employability, estate, liabilities, and needs of each of the parties, the custody of any children, and the reasonable opportunity of each spouse for future acquisition of capital assets and income.
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