If you are contemplating a legal separation or a divorce, creating a separation agreement that sets forth terms regarding division of property, child custody, allocation of debts, and other such issues could be an excellent way to protect your rights and streamline legal procedures. However, the terms of such an agreement will generally be considered binding, so you may want to use a document created or reviewed by an experienced legal professional.
Some people mistakenly think that it is necessary to file for divorce or legal separation before drawing up a separation agreement. Not only is this untrue, it sometimes works against everyone’s interests to wait so long to do so. In many situations, a separation agreement can preemptively protect the rights of both you and your spouse and help ensure that your wishes are carried out in the event of a separation or divorce. Each situation is different, so you must consider what is best for you and your children when deciding on the “right” time.
The Illinois Marriage and Dissolution of Marriage Act specifies that married couples may establish agreements regarding the distribution of property, spousal support, parental responsibilities, and child support in the event of a separation or divorce, as well as ownership of companion animals. This agreement should always be in writing.
Generally, the law provides that the terms of such an agreement—except those regarding parental rights and responsibilities—will be binding unless the court finds the terms to be “unconscionable” or particularly unfair, pursuant to 750 ILCS 5/502. “Unconscionable” is a specific legal term that essentially means that no “reasonable person” would accept the terms of the proposed agreement if they were given all of the relevant information. Your judge will generally presume the agreement is valid unless it determines the agreement is unconscionable.
In rare circumstances, you could seek to invalidate a Marital Settlement Agreement after a judge has signed it. For instance, if your spouse hid assets from you or pressured you into signing an agreement without having an opportunity to understand the terms, the separation agreement could be declared invalid.
One of the most critical issues a Marital Settlement Agreement usually concerns the allocation of property and assets between two spouses. Both you and your spouse should fully understand the extent of your property (both assets and liabilities), as well as whether it can be considered marital property or nonmarital.
Illinois is not a “community property” state where courts automatically split marital assets equally among both spouses. Instead, courts generally base the division of property on an “equitable division” philosophy that takes a variety of factors into account to identify what the court believes to be a fair distribution of assets and liabilities. These factors can include but are not necessarily limited to:
The terms of a well-written Marital Settlement Agreement can make negotiations between you and your spouse go more smoothly and protect your rights during the divorce process. Beyond that, the separation agreement can have a tremendous impact for the future since the terms will likely be binding for years to come, so it is wise to take prompt but careful action.
If you work with an experienced separation agreements lawyer from Reidy Law Office LLC, you could feel confident that you are taking the right steps to safeguard your future in Joliet and beyond. Call our office now to schedule a consultation and learn how we could help craft the right Marital Settlement Agreement for you and your children.