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 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 and Chicago.
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.
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.
But like any agreement, if certain requirements or language are not included in the agreement, the agreement may not be enforceable anyway. That's why it is always important to have an experienced family law attorney help draft and/or review the premarital agreement.
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.
So, in this respect, most prenuptial agreements will be enforced so long as they do not specify parental responsibilities, parenting time, and child support.
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 a prenuptial agreement in Illinois be considered invalid and unenforceable?
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.
- 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.
- 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.
- 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 – but the court will look at the fairness or lack thereof at the time the contract was made and not the contract's fairness or lack thereof at the time of the divorce.
What are the benefits of a prenuptial agreement in Illinois?
There are benefits to a premarital agreement in Illinois, and that's why so many couples are employing them today. It's as much about convenience at the time of a divorce – if that should happen – as it is about taking care of finances in a responsible way.
- protecting the assets that you acquired before you were married (e.g., you may have started a successful business and are not prepared to give that up in the event you divorce);
- preserving assets and property for your children of a previous marriage (e.g., though you cannot outline custody or child support in a prenup, you can protect your assets to make sure your child from another marriage can benefit as opposed to your assets and property is divided up between you and your ex-spouse and thereby potentially denying your child access to those same assets);
- making sure that the relevant party is reimbursed for paying any debt the other spouse brought into the marriage – like student loans or credit cards; and, among other benefits,
- decreasing the stress of a divorce proceeding by already having a lot of the division of property and assets in place (this process can often be costly and time-consuming, so already knowing who gets what to a great extent can cut down dramatically on time and costs).
Prenups are often accompanied by a negative connotation, but these agreements can be polite, considerate, and not at all cruel.
Prenups can also be amended if needed and revoked if wanted. Amendments and revocations do not require consideration (something given in return for the amendment), but they must be in writing and signed by both spouses.
Contact Experienced Family Law Attorneys in Dupage County & Cook County
No one wants to think their marriage will end in a divorce, but the reality is: people get divorced. Having a prenup to safeguard your assets for you and for any child you have from a previous marriage can be a significant relief. Indeed, if done right, prenups can be useful tools.
If you have questions about premarital agreements – whether you are engaged to get married or filing for divorce, contact our office. We will provide honest answers to your questions. Depending on your legal needs, we will address them comprehensively and compassionately while advocating your rights and interests.