Nothing pours cold water on the hopes and dreams of an upcoming wedding ceremony like a prenuptial agreement. Prenuptial agreements are not fun to think or talk about. A prenuptial agreement literally anticipates a divorce…which is awful. Still, a prenuptial agreement may save both you and your soon-to-be-spouse headaches and heartaches. A prenuptial agreement that specifies that Illinois law will be applied in any enforcement action can virtually guarantee the result in any possible divorce. If You Get Divorced In Illinois Without A Prenuptial Agreement Whether you know it or not, if you live in Illinois you already have a prenuptial agreement. If you don’t have a prenuptial agreement and you get divorced in Illinois, you have a default prenuptial agreement in the Illinois Marriage and Dissolution of Marriage Act(IMDMA). The IMDMA gets modified all the time by the Illinois legislature and by Illinois case law decisions which determine the IMDMA’s interpretation. You will never know what the IMDMA will contain on the day of your divorce filing…until it is too late. Even if you divorce without a prenuptial agreement, Illinois law allows individual judges enormous leeway to make decisions about you and your spouse’s life. “[T]he trial court possesses the inherent authority to control…the course of litigation” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007) In Illinois, marital assets are NOT divided 50/50. In Illinois, marital assets are divided equitably. “The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989 “Equitable” means “Just, fair, and right, in consideration of the facts and circumstances of the individual case.” Black’s Law Dictionary (10th ed. 2014) Maintenance, formerly known as alimony, is determined by a formula under the IMDMA: 33% of the big earner’s gross income less 25% of the small earner’s gross income, not to exceed 40% of the gross total incomes of both parties. The IMDMA does not require Illinois divorce judges to apply those guidelines if the judge does not find the guidelines to be fair in the case at hand. “Only if the court finds that a maintenance award is appropriate, the court shall order guideline maintenance in accordance with paragraph (1) or non-guideline maintenance in accordance with paragraph (2)” 750 ILCS 5/504(b-1) Paragraph 2 then specifies that the court need only have a reason, any reason, […]
from Russell D. Knight | Family Lawyer Chicago https://rdklegal.com/choice-of-law-in-illinois-prenuptial-agreements/
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