Most people have heard of prenuptial agreements, but many consider them something that happens in Hollywood or with other wealthy couples. However, there are quite a few ways in which an “ordinary” couple could benefit from drafting and signing a prenuptial agreement. While you may think that you will never split up, the reality is that a substantial number of all marriages—up to 40 percent or more, according to some estimates—end in divorce.

What is the Purpose of a Prenuptial Agreement?

A prenuptial agreement is primarily a formal way for a couple to decide how their property and assets should be split up in the case of a divorce. As such, it is somewhat like a property settlement that is agreed to before anyone is even thinking about filing for a divorce. It is important to keep in mind that a prenuptial agreement can also address concerns, such as investments and life insurance, that may be applicable during the marriage as well.  

Individuals with property, a business, or a potential inheritance often want to make sure these assets do not become marital property. A prenuptial agreement is one way for both spouses to keep the property they bring into the marriage separate. In a prenup, you can also choose to designate certain assets as marital property, even if they would otherwise be considered non-marital.

Among the many issues that need to be decided during a divorce is how to divide the couple’s marital assets and debts in an equitable way between the two spouses. This usually involves the division of real estate property, furniture, vehicles, bank accounts, retirement accounts, stocks, and other items of value. However, when one spouse owns a business or the spouses own a business together, that business is also likely to be an asset for which ownership must be determined during a divorce.

Determining the Value of a Business

The first thing to understand is that both the rights to the business and the value of the business must be considered to determine whether it is a marital asset and how it will be handled during the property division process. Under Illinois law, a marital asset is an asset that is acquired by either spouse during the marriage, with limited exceptions. This generally includes a business that was started or acquired during the marriage.

There are different ways to value a business, including approaches based on market value, assets, and expected future earnings. Each of these methods may be used for different purposes, and you and your spouse may have trouble agreeing on the value of the business, so it is often a good idea to work with a professional business valuator and seek multiple valuations.

The divorce process is likely to be rife with challenging decisions and difficult considerations for you and your spouse to manage. The two of you will need to deal with both your current situations, as well as your expectations and plans for the future, especially if you have children together. Among the myriad concerns that most couples face is the decision regarding who should be the one to file the formal divorce petition and when the petition should be filed. Is there an advantage to filing before your spouse does, or does it really matter who files first? The answer, as with most divorce-related questions, is that it depends on your unique circumstances.

Are There Legal Advantages to Filing First?

For the majority of divorcing couples in Illinois, filing first does not offer any special advantage from a legal perspective. The titles that will be used in your proceedings will be different depending on who filed first. The filer is referred to as the “petitioner” or “plaintiff,” and the other spouse is known as the “respondent” or “defendant,” but both parties have equal rights and responsibilities during the proceedings. You will have opportunities to bring up issues and express your objections whether you are the petitioner or the respondent.

The ability to allege and prove a claim against your spouse is also not contingent on which party filed for divorce first. For example, you can raise a claim of dissipating assets, or be required to defend against one, regardless of who filed the initial petition for divorce.

Study after study over the past several decades has documented the effects that hostile divorces have not only on the couple who is breaking up, but also the children of those marriages. A contentious divorce can have an impact on both emotional and physical long-term health for all involved. With almost half of all first-time marriages ending in divorce, and even more second and subsequent marriages not working out, it is hard to avoid being affected by divorce one way or another, whether it is your own or that of your parents or your adult children.

However, not all divorces have to be quite so difficult. More and more law firms are offering clients the option of collaborative divorce, and many of those clients are choosing that option as the more peaceful way to end their marriages.

What is a Collaborative Divorce?

Unlike traditional, litigated divorce, where parental responsibilities, division of assets and debts, and other marital issues are determined by a judge following a trial, collaborative divorce does not involve litigation. Instead, couples agree to work through these issues and come to an agreement on how they should be resolved. This is done with the help of attorneys representing each of the spouses. Many collaborative divorce teams also include a financial advisor, as well as mental health professionals and other experts whose input may be useful in the divorce process.

If you share parental responsibilities regarding your child with a former partner who has proven time and again to be inconsistent and unreliable, terminating his or her parental rights may make the most sense to you. However, under Illinois law, unless there is another party willing to step in and adopt the child, parental rights usually will not be terminated at the request of the other parent, unless there are extreme circumstances involved.

What Does Termination of Parental Rights Mean?

When a person’s parental rights are terminated, it means that he or she is no longer legally responsible for a child. When this happens, the terminated parent no longer is required to make child support payments, but he or she also no longer has rights to parenting time or any say in how the child is being raised.

The Illinois Adoption Act (750 ILCS 50) states that the only circumstances in which a parent’s rights can be terminated are when another person is looking to adopt the child, or when a court has found that a parent is unfit. In most cases, the court will agree that a child will best benefit from the care, or at least the financial support, of two parents. However, parental rights may be terminated if a parent is shown to be unfit for one or more reasons, including: