Can I recover or claim compensation from my wife’s property while filing for divorce, for the expenses I incurred for the family utilizing my assets, despite having a premarital agreement that treats our property separate post marriage?
Full Question:
I never thought that my marriage would come to an abrupt end. We were married for almost 14 years and we were in our mid-30s when we got married. Both of us were married once before and had a kid each from those. We knew what entails a divorce. Therefore, we made a prenuptial agreement which stated that each of us would keep our earnings and property separate even during the marriage and neither of us would give the other any right over them in the event of a divorce. My wife now has filed for a divorce in the Chicago. During the marriage, all the expenses, from children’s education to our investments, were taken care of by liquidating my assets and properties. My wife has all her assets intact while I am left with nothing. Is it possible to recover those expenses from my wife’s assets in the divorce settlement?
11/24/2016 |
Category: Divorce » Property Set... |
State: Illinois |
#27125
Answer:
Under 750 ILCS 5/503 clause (a), all property acquired by either spouse after the marriage including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property. Although, the law does provide a proviso which says that if there is an agreement between spouses that it shall not be treated as marital property, then such agreement shall stand and the property shall be treated as separate property.
750 ILCS 10/4 governs that content that might form part of a legally valid pre-marital agreement in Illinois. It reads:
“(a) Parties to a premarital agreement may contract with respect to:
(1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
(2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
(3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
(4) the modification or elimination of spousal support;
(5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
(6) the ownership rights in and disposition of the death benefit from a life insurance policy;
(7) the choice of law governing the construction of the agreement; and
(8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.”
Therefore, it is reasonable to infer that any premarital agreement between spouses is valid if they include the contents mentioned in 750 ILCS 10/4.
Except for a detrimental clause affecting child support, spouses are permitted to include any clause to protect their interest in a premarital agreement. In the event of a divorce, such premarital agreements are enforceable and are legally valid. In the case at hand, the husband cannot claim any of his wife’s property in the event of a divorce due to the premarital agreement’s clause which says that their property shall remain separate property post-marriage.