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Premarital agreements: Protect your property rights
by Roger McCaffrey-Boss of Roger V. McCaffrey-Boss & Associates
2014-02-05

This article shared 4310 times since Wed Feb 5, 2014
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On June 1, Illinois LGBT couples will be able to apply for a marriage license, get married the following day, and enjoy all the benefits and legal obligations that married spouses have enjoyed for years.

LGBT couples where someone has a terminable illness, however, can get married now with a supporting letter from their physician.

Although madly in love today, divorce lawyers know that love does not conquer all and that love can sour and turn to conflict. In the world of heterosexual marriage there is an established history of divorce terms, experience with breakup rights and duties that are different from the rules that LGBT couples have lived by.

Divorce clients know the trials and tribulations of a best friend's divorce, the property settlement they got, what their lawyer could or could not do for them and their responsibilities for payment of maintenance and child support. Unfortunately, these rules are new to LGBT couples planning marriage. They are important and everyone who plans to "tie the knot" should be aware of them.

Whatever you thought was your sole property before marriage changes. When married, spouses have rights as to the martial property of the couple. Marital property is any property acquired by the parties during their marriage except for property which is specifically excluded as non-martial property. The burden is on the party claiming non-marital property to prove it.

If you get married, and split from your spouse, you may have to pay for maintenance. The amount and duration of maintenance is determined based upon relevant factors including age, income and property of each party, education, length of the marriage, whether the recipient's ability to earn income has been impaired due to absence from the workforce to attend to domestic duties, and lifestyle of the parties.

If you divorce, you may have to pay attorneys' fees for yourself and you may have to pay the legal fees of your spouse. The law says that attorney's fees are the primary responsibility of the party incurring fees. However, if your spouse does not have any money, you may be required to pay his/her fees. Contribution of attorneys' fees from one party to the other is available where the payment of attorneys' fees would undermine a partner's economic stability.

Illinois is an equitable distribution state which means property is not necessarily divided 50/50—there is no guarantee that either spouse will get half. The Court considers relevant factors in determining how assets are to be divided, such as length of the marriage, age, health and employability of the spouses, contribution, both financial and non-financial, to the acquisition of property, the parties' respective abilities to generate capital assets in the future and other factors.

And if you die, your spouse has legal rights to certain retirement accounts you have regardless of who you named as the beneficiary.

Instead of letting a judge decide these issues in case you divorce, you should have a premarital agreement to establish your own financial agreements. Premarital agreements clarify the rights and expectations in the marriage and can reduce the expenses and stress in a divorce by eliminating the issues to be determined.

Premarital agreements must be in writing and signed by both parties. They must be entered into freely and voluntarily. And they require fair and reasonable financial disclosures. They also require each spouse to have their own attorney represent them and be signed well before the marriage so no claim can be made that the Agreement was forced onto one of the spouses.

I have always advocated for all parties in an LGBT couple to create their own property agreements and decide what issues should be covered. Doing that before marriage is the time.

Roger V. McCaffrey-Boss, Esq., Law Offices of Roger V. McCaffrey-Boss & Associates, P.C., 33 North Dearborn Street, Suite 800, Chicago, Illinois 60602, Phone 312 263 8800, email: RVMLawyer@aol.com


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