2023

Material didáctico alumnos: Unidad Familia

TEXTO 1: Prenuptial Agreements in Illinois
Fuente: http://www.divorcenet.com/resources/prenuptial-agreements-illinois.html#b

Prenuptial Agreements in Illinois

Learn what makes a prenuptial agreement enforceable in Illinois.

by Aaron Thomas

Couples considering marriage today are three times more likely to make a prenuptial
agreement than spouses were ten years ago. No longer just a protection for the wealthy,
prenuptial agreements are used by couples from all income brackets to decide how their
property will be divided if they divorce.

You may be curious how a prenuptial agreement works in your state. This article will
explain what kinds of things an Illinois prenuptial agreement can determine, and how
courts decide whether or not to enforce a prenuptial agreement upon divorce.

What Is a Prenuptial Agreement?

A prenuptial agreement is an agreement between potential spouses, made before
marriage. A prenuptial agreement typically spells out how couple will handle assets,
debts, and other financial issues during their marriage and if they decide to split up. The
agreement goes into effect when the couple gets married.

Who Should Get a Prenuptial Agreement?

While many people believe that prenuptial agreements are “unromantic,” prenuptial
agreements actually help spouses avoid disputes over property and can improve marital
happiness. Each year, more couples choose to enter into prenuptial agreements prior to
marriage to remove doubt from what will happen to their property if they divorce.

There are many reasons you may want to consider a prenuptial agreement. If you have
children from another marriage, a premarital agreement can help protect their future
inheritance. If you have a business, retirement accounts, or any property you own by
yourself, you may want to protect those assets from potential division if you divorce. You
may also want to determine ahead of time what will happen to property you acquire
during the marriage. A prenuptial agreement can help with all of these issues.

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Of course, your property and debts will be divided by the court when you divorce,
whether or not you have a prenuptial agreement. But creating your own agreement allows
you and your partner to decide who will get what, rather than leaving it up to a judge.

What Issues Can a Prenuptial Agreement Cover?

Prenuptial agreements in Illinois may address any or all of the following issues:

 whether one spouse pays the other alimony after divorce, including the amount
and duration of payments
 each spouse’s ownership of property upon divorce
 each spouse’s rights to use, sell, transfer, manage, or dispose of property
 either spouse’s obligation to create a will to carry out the terms of the agreement
 either spouse’s ownership rights in the death benefit from a spouse’s life insurance
policy
 which state's law will apply to the agreement in case of a dispute, and
 any other matter for which two people can legally contract.
Spouses can amend their prenuptial agreement at any time after they are married. Any
amendment to the prenuptial agreement must be in writing and signed by both spouses.
Spouses can also revoke the agreement altogether by putting their intentions to cancel the
agreement in writing and signing it.

Can a Prenuptial Agreement Determine Child Custody and Child Support

in Illinois?
A child’s right to child support cannot be affected by a prenuptial agreement.

The right to receive child support belongs to the child, and parents can’t contract in
advance how much the child will need at the time of divorce. Similarly, a parent can’t give
away a child’s right to receive financial support from the other parent.

Also, child custody can’t be decided in advance by a premarital agreement. The couple or
the court can decide child custody at the time of divorce. Custody decisions must be based
on the child’s best interests at the time of the divorce.

Learn more about Illinois Child Custody and Support.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Illinois?
Illinois, like many states, has adopted the Uniform Premarital Agreement Act (UPAA).
The UPAA is a set of guidelines that govern how courts decide whether a prenuptial
agreement is enforceable.

All prenuptial agreements must be in writing. Both spouses must also sign the agreement
for it to be enforceable.

Prenuptial agreements do not have to be witnessed by anyone besides the couple, and do
not have to be recorded with the clerk of court.

While a prenuptial agreement doesn’t legally have to include a schedule of each spouse’s
assets and debts, it’s a good idea to include these lists anyway. A court is more likely to

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enforce the agreement if it includes this type of proof that each spouse knew the other's
financial situation before signing the agreement.

When Will the Court Refuse to Enforce a Prenuptial Agreement?

Courts generally enforce most prenuptial agreements. That one spouse receives a
disproportionate share of assets won’t make the agreement unenforceable. A judge won’t
enforce the agreement under these circumstances:

 One spouse did not sign the agreement voluntarily (signed under duress).
 The financial terms of the agreement would make one spouse eligible to receive
public assistance.
 The terms of the agreement are severely unfair or unjust (also referred to as being
“unconscionable"), and
o One spouse failed to disclose his or her true assets and debts before signing
the agreement
o The spouse who did not receive the other spouse’s honest financial
information did not waive the right to receive it, and
o The spouse who did not receive the other spouse’s financial information
could not have known the information any other way.
The judge hearing the divorce case will decide whether the agreement is unenforceable
due to duress or because it is unconscionable.

For duress to render an agreement unenforceable, it is not enough that one spouse told the
other that there would be no marriage without a prenuptial agreement. One spouse must
have threatened the other to the degree that the threatened spouse had no choice but to
sign the agreement. The court may take into account the period of time between the
agreement and the marriage ceremony when determining whether it was made under
duress. The spouses don’t have to have retained attorneys for the agreement to be
enforceable.

Courts won’t throw out a prenuptial agreement due to unconscionablility unless it is an

extreme situation. The court will not invalidate the agreement unless it would result in
catastrophic circumstances for one spouse.

Sometimes a couple’s marriage is void (legally invalid) because one spouse is too young,
still married to another person, or is mentally incapable of getting married (insane or
seriously mentally deficient). In these cases, the court will usually invalidate the
prenuptial agreement, unless it would have an extremely unfair result to a spouse.

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TEXTO 2: Premarital Agreement
Fuente: www.prenhall.com/divisions/ect/app

PREMARITAL AGREEMENT

PREAMBLE

THIS AGREEMENT is made this _____ day of ________________ 2008, by and

between ____________________________________ of ___________________,
and _________________________________ of__________________________,
collectively referred to as “the parties”.

RECITALS

WHEREAS,

A. The parties plan to be married in ___________________________on or about

______________________, 2008. Neither of the parties has been married previously.

B. Each recognizes that the other is gainfully employed and possesses property and assets
independently acquired prior to their intended marriage such that each is able to provide
for his or her own individual needs. Each desires to enter this agreement realizing that
either or both of the parties’ financial, health, or other circumstances may change
substantially in the future.

C. The parties intend by this Agreement to define and fix their respective rights and
obligations to each other with regard to spousal support and to any property now owned
or hereafter acquired before or after the date of their marriage, in the event of the
termination of their marriage by death or legal process.

D. A owns certain property, both real and personal, as listed on Exhibit 1 attached hereto
and incorporated herein, the nature and approximate value of which has been fully
disclosed to B prior to execution of this Agreement. Also listed on Exhibit 1 and previously
disclosed to B is A’s indebtedness exclusive of his personal expenses.

E. B owns certain property, both real and personal, as listed on Exhibit 2 attached hereto
and incorporated herein, the nature and approximate value of which has been fully
disclosed to A prior to execution of this Agreement. Also listed on Exhibit 2 and
previously disclosed to A is B’s indebtedness exclusive of her personal expenses.

F. The parties acknowledge that each has had an adequate opportunity to negotiate,
review, and consider the terms of this Agreement prior to execution; that each has been
advised by independent counsel of his or her individual choice as to their rights as a
spouse under the law and the legal effect of the Agreement on those rights; that each
believes the provisions of the Agreement are fair, just, and reasonable; that each
understands, assents to, and intends to be bound by its provisions; and that each enters

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the Agreement freely, voluntarily, and without any duress, undue influence, or illegal
consideration.

G. This Agreement shall become effective only upon the marriage of the parties within a
period of one (1) year from the date hereof, and, if such marriage is not solemnized within
said period, then this Agreement shall be null and void.

NOW THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties mutually agree as follows:

AGREEMENTS

1. Definition of Separate Property

For purposes of this Agreement, “separate property” shall be defined as:

a. all assets in which each presently has an interest exclusive of the other as shown on the
Schedules contained in Exhibit 1 and 2;

b. any inheritances, gifts, bequests, or devises received by either of them after the date of
the parties’ marriage;

c. all appreciation, reinvestments, and proceeds of sale or redemption of any of the above
property after the date of the parties’ marriage;

d. any property designated as separate property by both parties in writing after the date of
their marriage; and

e. any income earned by either party during the marriage including salaries and bonuses.

2. Separate Property during Marriage

Each party agrees to keep and retain the sole ownership and control of any property held
as his or her separate property as herein defined without interference from the other and
in the same manner as if the marriage had not occurred.

3. Separate Obligations of the Parties

Obligations of a party incurred prior to the marriage shall remain the separate obligations
of that party. The other party shall not be liable for those obligations, and shall be
indemnified and held harmless from them by the responsible party. Such existing
obligations shall be paid from the separate property of the responsible party.

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4. Definition of Marital Property

For purposes of this Agreement, with the exception of either party’s separate property as
herein defined, marital property (“Marital Property”) shall be defined as all property
accumulated by the parties during the marriage until the date of the death of either party
or the date on which any legal action for separation, annulment, or divorce is commenced.
Marital property shall also include any property designated as marital property by both
parties in writing after the date of the marriage.

5. Marital Property upon Termination of the Marriage

a. In the event of termination of the marriage by legal proceedings, all assets then jointly
owned by the parties as joint tenants, tenants by the entirety, or otherwise and not herein
defined as separate property shall be divided equally between the parties.

b. In the event of the termination of the marriage by the death of a party, all assets defined
as marital property shall become the sole property of the surviving party to the exclusion
of the decedent’s estate. The surviving party shall own said property subject to any liens,
mortgages, or encumbrances secured by the property.

6. Mutual Waivers
a. Waiver of Rights to Property: In the event of termination of the marriage by divorce or
annulment, the parties agree not to assert any claim of any kind to the separate property of
the other as herein defined. This waiver shall not apply to marital property.

b. Waiver of Rights to Maintenance and Support: In the event of a legal separation,

divorce, or annulment, the parties agree to waive any rights to spousal support or
maintenance of any kind to which either might otherwise be entitled. The parties agree
that this provision may be entered as a complete defense by either party in response to an
action for alimony. The parties further agree that nothing herein shall be deemed a waiver
of either party’s right to claim child support
for support of any minor children born to or legally adopted during their marriage.

c. Waiver of Estate Claims: In the event of the death of one of the parties, each party
hereby relinquishes and waives all rights, claims, and interests that he or she may have or
acquire as surviving spouse, heir at law, or otherwise in the estate of the other party.

7. Wills/Trusts
Nothing contained herein shall preclude or prevent either party from freely executing a
will or settling a trust that confers benefits on the other party, or from nominating the
other party as executor or trustee, or from exercising any power of appointment in favor of
the other party.

8. General Provisions
a. Entire Agreement

The parties agree that this Agreement contains their entire understanding and that there
have been no additional promises, representations, or agreements made to either party by
the other, oral or written, except as set forth herein.
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b. Modification

This Agreement may be modified, amended, or rescinded at any time after the
solemnization of the marriage, only by a subsequent written agreement between and
signed by the parties.

c. Waiver of Breach or Default

No waiver of breach or default with respect to a provision of this Agreement shall be

deemed a waiver of any subsequent breach or default.

d. Binding Effect

This Agreement shall be binding on the parties hereto and their respective legal
representatives, heirs, successors, and assigns.

e. Severability

In the event any provision of this Agreement shall be held illegal, invalid, or otherwise
unenforceable, such holding shall not invalidate or render unenforceable any other
provisions hereof, and the offending provision shall be severed from this Agreement and
be null and void and of no force and effect.

f. Governing Law

This Agreement shall be governed, controlled, and interpreted under the laws of the state
of ________________.

IN WITNESS WHEREOF, the parties have signed, sealed, and acknowledged this
Agreement on the day and year indicated below.

Witness_____________________________ Witness_____________________________

Name of prospective spouse A____________

Name of prospective spouse B____________
Date_______________________________

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 EXHIBIT 1

SCHEDULE OF ASSETS FOR ___________________

Assets Fair Market Value Adjustments Net Value

Real Estate
(List) Personal Property
Bank accounts
Stocks and securities
Retirement funds
Life insurance
Antiques
Jewelry
Collections
Vehicles including boats, etc.
Other
Total

Liabilities
(List)
Total
Net Worth
Date:
___________________________

Signature of prospective spouse A

I hereby acknowledge that I have received and reviewed this schedule of assets and
liabilities.
Date:
____________________________

Signature of prospective spouse B

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Texto 3: Legal grounds for Divorce - New York
New York was the last state to allow for no-fault divorce grounds. Prior to the new law
for no-fault divorce which took effect in October 2010, the only way to obtain a divorce
without proving fault was to first live apart for a year and agree to settlement terms.

The statutory grounds for divorce in New York are now as follows:

1. Cruel and inhumane treatment of one spouse by the other that endangers the physical
or mental well-being of the spouse, making it unsafe or improper for the spouses to
continue living together;
2. Abandonment for a period of one or more years;
3. Confinement of one spouse in prison for a period of three or more consecutive years
after the marriage;
4. Adultery;
5. The spouses have lived apart pursuant to a decree or judgment of separation for a
period of one or more years after the decree or judgment was granted, and satisfactory
proof has been submitted by the plaintiff that he/she has substantially performed all the
terms and conditions of the decree or judgment;
6. The spouses have lived apart pursuant to a written agreement of separation, for a
period of one or more years after the execution of such agreement and satisfactory proof
has been submitted by the plaintiff that he/she has substantially performed all the terms
and conditions of such agreement, which is filed in the office of the clerk of the county
where either spouse lives; or
7. The relationship between the spouses has broken down irretrievably for a period of at
least six months.
If the marriage is irretrievably broken, one spouse must make this claim under oath. In
addition, to receive a divorce decree under these grounds, the couple must reach an
agreement regarding distribution of marital property and debt, spousal support, child
support, custody and visitation, and payment of related fees and expenses, or the court
must make determinations regarding these issues and they must be incorporated into
the judgment of divorce.
In order to obtain a divorce under grounds of adultery, the following must be true:
• The other spouse did not procure the adultery or connive with the adulterant when
the adultery was committed;
• The plaintiff has not forgiven the adulterant, which can be shown by the plaintiff
voluntarily cohabitating with the adulterant with knowledge of the adultery;
• No more than five years have passed since the discovery of the adultery;
• The plaintiff has not committed adultery.

Either party has the right to trial by jury on the issues of the grounds for granting the
divorce.

Fuente: HG.org

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TEXTO 4: Defense of Marriage Act (DOMA)
(570 palabras)

The Defense of Marriage Act (DOMA) was a federal law passed by the 104 th United States
Congress intended to define and protect the institution of marriage. This law
specifically defined marriage as the union of one man and one woman which allowed
individual states to not recognize same-sex marriages that were performed and recognized
under other states’ laws. Nonetheless, this law's sections were ruled unconstitutional by
the United States Supreme in cases such as United States v. Windsor (2013) and Obergefell
v. Hodges (2015).

This law specifically stated that "the word 'spouse' refers only to a person of the opposite
sex who is a husband or a wife” and further states that “[i]n determining the meaning of
any Act of Congress, or of any ruling, regulation, or interpretation of the various
administrative bureaus and agencies of the United States, the word 'marriage' means only
a legal union between one man and one woman as husband and wife, and the word 'spouse'
refers only to a person of the opposite sex who is a husband or a wife.”

The implications of this law were that it denied a large number of benefits and recognition
to same-sex couples that opposite-sex couples enjoyed. These benefits included but were
not limited to over 1,000 federal protections and privileges such as access to a spouse’s
employment benefits, the recognition of the marriage itself, the rights of inheritance, joint
tax returns and exemptions, and the right to cohabit together in a college or military
housing.

In fact, DOMA authorized that states that banned same-sex marriage did not have to
recognize same-sex marriages that were performed in other states and further specified
that in regards to federal law, marriage is only between a man and a woman. This law had
overwhelming support within Congress while there was speculation that Hawaii was going
to soon recognize same-sex marriage, which could force or prompt other states to recognize
same-sex marriages that occurred in Hawaii. President Bill Clinton signed DOMA into law
on September 21, 1996. Afterwards, about 40 states enacted specific bans on same-sex
marriage.

One of the major provisions of this law was that a nonbiological parent could not have a
legal relationship with a child of the biological parent in a same-sex couple. Moreover,
same-sex couples could not take medical leave to care for their partners or nonbiological
children. They also could not adopt children and during divorce proceedings, they could not
petition the court for custody, visitation rights, or child support.

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The supporters of DOMA believed that opposite-sex marriage was the only appropriate
method for family formation and procreation. One of the major arguments from
proponents of DOMA was that same-sex marriage could lead to alternative family
formations and could even result in incestuous relationships and polygamous marriage. On
the other hand, the opponents of DOMA claimed that DOMA’s definition of marriage as
only between one man and one woman and other arguments were discriminatory on the
basis of sex, and equated homosexuality with incest and polygamy.

In 2013 in United States v. Windsor, the U.S. Supreme court struct down DOMA’s definition
of marriage as only between one man and one woman. Furthermore, in 2015 in Obergefell
v. Hodges, the Supreme Court struck down the section of DOMA that allowed individual
states to not recognize same-sex marriages performed in other states. This result granted
same-sex couples the constitutional right to marry.

United States v. Windsor, 570 U.S. 744 (2013)

Fuente Texto 3: https://www.law.cornell.edu/wex/defense_of_marriage_act_(doma)

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