A previous blog touched on the importance of prenuptial agreements in facilitating property division during a divorce. However, it is also true that many couples do not execute prenuptial agreements, leaving property division to the judicial process.
Once couples decide to file for divorce, property division is usually the most contentious issue second to child custody. Illinois contains specific guidelines that a judge must consider in determining how to divide the marital estate. The crux of this determination focuses on defining the marital estate and how to divide said estate.
However, the Illinois Marriage and Dissolution of Marriage Act allows (encourages) couples to reach out-of-court agreements that divide the property. Parties find these out-of-court settlements appealing because they tend to avoid protracted litigation and allow them to reach an agreement that is more agreeable than a court-mandated distribution. A settlement agreement also allows the parties to focus on forging a normal post-divorce relationship instead of harboring rancor that usually follows a court-mandated property division.
Martial settlement agreements, however, can backfire if they are not drafted properly by an experienced family law attorney who knows the requirements of Illinois divorce law.
Indeed, family law judges will not approve a marital settlement agreement if its terms are unconscionable. The term unconscionable is a term of art, and means an agreement that is grossly unfair and disproportionally favors one party. At times, this happens when the parties try to save a few bucks and use a template they find online only to discover that they need an attorney once the judge denies the proposed agreement.
The ability to settle property division issues out of court is an important benefit that Illinois allows divorcing couples, but it has little value if it is not used properly. If you are facing a divorce, do it right the first time around and hire an experienced Illinois family law attorney.