Prenuptial Agreements in Illinois

Prenuptial agreements in Illinois often have a bad reputation and are frequently misunderstood. They can be important tools to use to protect yourself and your assets going into a marriage. What’s more: they offer transparency, and that’s a good place to start a marriage.

Getting married is a wonderful thing. You always intend to spend the rest of your life with that person. But more so today than yesterday, couples who get married want to protect themselves in case a divorce happens – because, as we all know, it does happen. This form of “protection” is often a prenuptial agreement. Indeed, prenuptial agreements are no longer reserved for the wealthy, but couples from all brackets of income are taking advantage of the benefits a prenuptial can provide. That said, there are risks to it, too.

In Illinois, family law attorneys at Dolci Weiland & Sendlak want you to be informed and to understand what a prenuptial agreement means for you and what it entails to go about it lawfully. If you have questions about prenuptial agreements, feel free to contact our attorneys. We have offices located conveniently in DuPage County.

What is an Illinois prenuptial agreement?

Asset division and distribution at the time of a divorce in Illinois can get pretty complicated. Prenuptial agreements (also called prenups) are more correctly referred to as premarital agreements in Illinois and are governed by the Illinois Uniform Premarital Agreement Act. These agreements are a way for persons to protect their assets and property before and during a marriage, but they are also used for many other purposes, too. Marital agreements, according to 750 ILCS 10/4, can be used to outline:

• how assets, debt, and other finances are managed during the marriage and handled in the event you divorce;
• whether or not maintenance payments will be paid and in what amount;
• how death benefits will be distributed;
• how wills and trusts will be executed; and
• any other issue you can legally put into a contract.

Who Should Have a Prenuptial Agreement in Illinois?

While many people can benefit from the use of a prenuptial agreement, it is especially beneficial for people in the following situations:

• If you own a business, it is a good idea to look into a prenuptial agreement. This helps protect the business in case of divorce.
• If you own significant assets, a prenuptial agreement is a good idea to keep them protected.
• If you have children from a previous marriage, a prenuptial agreement can assist in protecting the inheritance of those children.

Contrary to popular opinion, prenuptial agreements aren’t just for the wealthy. They can provide needed protection to people from all walks of life.

What can and cannot be included?

Prenuptial agreements in most states can be used to address many different issues, including:

• What property should be considered marital and what should be considered separate? Instead of having a judge decide this matter pursuant to the laws of your state, you can decide beforehand.
• Protections for certain property. For example, if the engagement ring is a family heirloom on the spouse’s side, the parties may agree that in the event of divorce, the ring goes back to the husband.
• Mediation. You may agree that should one or both spouses want a divorce, the parties are required to go through mediation or arbitration.

What you cannot provide in a premarital agreement include things like:

• who gets parental responsibilities (i.e., child custody);
• who gets parenting time and when that time is allotted; and
• whether or not child support will be paid and in what amount.

Courts do not like provisions that address personal rather than financial issues. For example, a prenuptial agreement should not contain a provision stating where the parties will spend their Christmases. A prenuptial agreement should not be used to address anything that is illegal.

How is a prenuptial agreement enforced in Illinois?

Prenuptial agreements become effective upon marriage according to 750 ILCS 10/5 and are typically enforceable if they:

• are in writing; and
• possess the signatures of both parties.

Prenups in Illinois do not become enforceable until you have decided to divorce and file the petition for the dissolution of your marriage. When you file for divorce, the next step will be to determine whether the case proceeds in accordance with the rules stated in the prenup or the rules delineated in the Illinois Marriage and Dissolution of Marriage Act.

One party may file a motion for declaratory judgment to determine if the prenup is binding. Based on the court’s findings, the case will follow the relevant rules. If the court finds the prenup to be unenforceable, you can appeal.

When can an agreement be considered invalid?

Apart from not allowing a prenuptial to outline how matters concerning children will be handled upon divorce, there are other reasons when a premarital agreement may not be enforced. These reasons include situations that apply to all unenforceable agreements: fraud, duress, and unconscionability.

• Fraud: When a spouse lies, conceals information, or otherwise commits a fraudulent activity in order to get the other party to sign the agreement, the premarital agreement will be invalid.
• Duress: When one party threatens or otherwise wrongfully and unlawfully induces the other spouse against his or her free will to sign the agreement, the premarital agreement will be invalidated.
• Unconscionability: When the premarital agreement is unreasonably one-sided and biased so that one spouse is seriously disadvantaged by it and who was not in a position to refuse to sign it, the premarital agreement may be deemed unconscionable and invalidated because of it.

Contact Experienced Family Law Attorneys in DuPage, Cook, and King Counties

No one wants to think their marriage will end in a divorce, but the reality is: people get divorced. While you may be tempted to draft your own prenuptial agreement before getting married, it is a good idea to speak with an attorney regarding how these contracts work in your state. Courts have a tendency to look for reasons to find these agreements unenforceable, so the help of an attorney is almost necessary to ensure your prenuptial agreement is upheld in case of divorce.

At Dolci Weiland & Sendlak, our family law lawyer will review, draft, and negotiate a prenuptial agreement on your behalf, ensuring that your interests and rights are heard and upheld. Contact us either online or directly at 630.261.9098 to schedule a free consultation.