A prenuptial is an agreement made between two people who are considering getting married so that they can protect their properties and assets. Let's look at what a typical prenup involves.
Today, potential spouses are three times more likely to take out a prenuptial agreement than they were about a decade ago. Prenups are no longer just a protective measure for the rich; these days, people from all income groups are taking out agreements in case they divorce.
Requirements of Illinois Law for a Prenup
An agreement made before marriage between potential spouses is known as a prenup. A prenup lists in detail how the couple will handle their property, debt, and other financial matters in case they divorce.
Before signing a prenup, it is important that the couple seeks the advice of an Illinois divorce lawyer to make sure all the provisions are correctly stated down and comply with the Illinois Uniform Premarital Agreement Act. Once both parties are in agreement, the document is signed and it will serve as a legal basis for the stipulations to be carried out.
Aside from providing protection to their partner’s assets and business interest, prenup agreements can also detail spousal support as well as non-financial responsibilities.
A prenuptial agreement is always made in writing and only comes into effect once the couple is legally married. If the couple decides not to get married after drawing the prenup, the stipulations in the prenup become null and void. In addition, a prenup can also be amended or revoked after a couple gets married, if a written contract is signed willingly by both parties.
Before signing a prenup, both parties should disclose their finances completely to each other, including ownership of their property, the income they earn, and the debt they owe. A party can waive their right to receive full financial disclosure, but they may do so in writing.
Prenups do not need to be witnessed by any one besides the couple and it does not need to be documented with the clerk of court. In addition, prenups do not legally have to include a list of both the spouses’ assets and debt but it is a good idea to include these since a court will more likely enforce the prenup if it contains proof that both spouses knew about each other finances before they signed the agreement.
What Does An Illinois Prenup Agreement Cover?
A prenup addresses how certain issues will be managed if the couple ever divorces, but it can also provide both parties with transparency and protections while they are married.
A prenup can clarify how each party’s obligations will be met, what the couple should expect from each other, and give them peace of mind over their finances. It also helps to preserve both the partners’ financial independence. If the person has built a career during their marriage years to support themselves, a prenup ensures they will continue to have access to their financial resources to maintain the lifestyle for themselves.
A prenuptial agreement in Illinois deals with the following issues:
A prenup will specify exactly how much spousal support or alimony a spouse may be eligible for and for long they will be provided it. It can also revoke the right of spousal maintenance altogether.
Ownership of property
A prenup will detail the rights and obligations of each spouse regarding a property owned by one or both spouses, whether it was acquired before or after marriage. This includes the right to buy, sell, lease, giveaway, and other ways to control or manage the property. A prenup covers property rights including community property, separate property and property distribution.
Distribution of property
A prenup will also detail how a property will be divided among the two spouses who are heading towards a divorce. It also addresses how the couple will handle assets and debt in case of separation, death or any other event. Couples also have the right to identify certain assets as non-marital property that is the exclusive property of one spouse and not subject to division after divorce between the couple.
A prenup can also address the rights of each spouse regarding life insurance benefits held by either or both spouses.
Application of law
The prenuptial agreement also specifies which state’s laws will be applied if any disputes arise relating to the prenup. If the couple has a prenup drawn in Illinois, the Illinois law mentioned above will apply.
Will and trusts
A prenup may also require either spouse to create a will or trust that can ensure the provisions of the prenup are carried out accordingly.
A prenuptial agreement can also specify decisions about other matters that the spouses can contract. These, of course, should not be in violation of public policy or government laws.
Can a Prenup Be Used to Determine Child Custody and Support?
A prenup cannot be used to determine how much parenting time and financial support should be given to a child shared by the couple. That is because it is the child’s right and not the couple’s.
Parents cannot negotiate in advance how much time and support a child will need if they ever divorce. In the same way, a parent cannot give away the right of the child to receive financial support from their other parent.
Child custody cannot be decided in advance, either. The divorcing couple will have to determine this at the time of the divorce and they will need to place their child’s best interest at heart during the time of the divorce.
What Things Can Invalidate a Typical Prenup?
A prenup may be deemed void due to a variety of reasons. One example is that the spouse was dishonest in reporting assets. Another example is that the prenuptial agreement was used to stipulate that one partner would not pay child support to the parent who has custody.
These acts are “unconscionable” and can result in the unenforceability of the prenup under Illinois law. A judge will not enforce the prenup under the conditions below:
- The prenup was not in writing
- A spouse was forced or coerced into signing the prenup agreement.
- A spouse was unable to read the prenup.
- A spouse was not given enough time to consider the stipulations in the prenup before they were pressured into signing it.
- Both the spouses should be represented by their own attorneys.
- If the terms are severely unjust or unfair (unconscionable).
- If one spouse failed to disclose their full financial situation, including assets and debt before they signed the agreement.
- If a spouse did not receive honest information about the other spouse’s financial situation and did not waive their right to receive it either.
The presiding judge will decide whether a prenuptial agreement is enforceable due to being unconscionable. To render it such, it is not enough that one spouse threatened that there would be no marriage without a prenup. The conditions must be extreme and catastrophic for one spouse.
In some cases, the marriage itself is legally invalid because one spouse was underage, was mentally incapable of consenting to the marriage, or was already married to someone else at the time. In this case, the prenup will usually become unenforceable unless there are extenuating circumstances.
Who Should Get a Prenup?
Although most people tie the knot in the hopes that they would remain married forever, prenups can help spouses avoid conflict over property and improve their marital happiness. There are also many other reasons to consider a prenup:
- If you have children from another partner, a prenuptial agreement can help protect their inheritance.
- If you have businesses, property, or any account that you want to be your sole property, you can protect these assets through the prenup.
- A prenup can also help determine what will happen to any property you acquire during marriage.
Regardless of whether you make a prenup or not, your wealth will be divided with your spouse in case of a divorce. However, a prenup can help you and your spouse determine who will get what rather than let the judge decide.
Contact Tommalieh Law to Draft a Prenup
A prenup can provide many benefits, both during your marriage and if you are considering divorce. But before you sign a prenup, it is important to consult our family lawyers. At Tommalieh Law, we can help you draft a prenup that addresses your financial concerns. If you have any concerns about a prenuptial agreement in Illinois, call us today to schedule a consultation with us.