If you are preparing to get married or thinking about proposing to your significant other, it is worth considering the benefits of a prenuptial agreement. Contrary to popular belief, signing a “prenup” is not merely an exercise in “preparing for divorce,” and in many cases both spouses will benefit from having an agreement in place during their marriage.
In Illinois, all prenuptial agreements are subject to the requirements and limitations of the Illinois Uniform Premarital Agreement Act. However, even within the confines of this law, fiancés still have a significant amount of flexibility with regard to structuring agreements that work for them. As you contemplate your options regarding signing a prenup, here are some of the key considerations to keep in mind:
Are Prenuptial Agreements Enforceable in Illinois?
As a baseline, prenuptial agreements are enforceable in Illinois. A prenuptial agreement becomes effective at the time of marriage, and it remains in effect until either: (i) the spouses agree to modify or cancel it, (ii) the spouses get divorced, or (iii) a judge renders all or part of the agreement unenforceable in court. Under the Illinois Uniform Premarital Agreement Act, the only grounds for a judicial determination of unenforceability are:
- If one spouse did not sign the agreement voluntarily; or,
- If the agreement is unconscionable and one spouse did not have adequate knowledge of the other spouse’s property or financial obligations at the time of signing.
What Can a Prenuptial Agreement Cover?
Spouses-to-be can address virtually all aspects of their marriage and divorce in their prenuptial agreement with one major exception: A prenuptial agreement cannot limit either party’s obligation to pay child support. Some of the topics that are most commonly addressed in premarital agreements in Illinois are:
- Ownership of property acquired or accumulated prior to or during the marriage;
- The right to buy, sell, lease, and make use of property during the marriage;
- Spending budgets and savings targets that will be enforced during the marriage;
- Obligations for childrearing, household chores, financial management, and other day-to-day aspects of marriage;
- The distribution of property at the time of divorce or upon the death of either spouse;
- Specific terms that each spouse will include in their will or other estate planning documents;
- The amount and duration of alimony, if any; and,
- Methods for resolving disagreements during the marriage or in the event of a divorce.
Can a Prenuptial Agreement Prevent Payment of Alimony?
As referenced in the list above, a prenuptial agreement can prevent the payment of alimony in Illinois. Under Illinois law, fiancés are free to include any provisions regarding alimony to which they are both willing to agree. However, a provision regarding alimony may be deemed unenforceable if either spouse conceals information about his or her finances when signing the agreement, and the Illinois Uniform Premarital Agreement Act also provides that:
“If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.”
In other words, if it makes sense to limit or eliminate one spouse’s obligation to pay alimony at the time of marriage but changes during the marriage make it necessary for him or her to receive financial support after a divorce, then the Illinois courts may still award alimony despite the terms of their prenuptial agreement.
Do You Need a Lawyer to Prepare a Prenuptial Agreement?
So, you think you might be interested in a prenuptial agreement. Should you hire a lawyer? Technically, there is nothing that says you are required to hire an attorney to draft your prenuptial agreement. But, there are a variety of reasons why it may be in your best interests to do so.
1. Determining Which Issues to Address in Your Prenup
First, you need to make an informed decision about which issues to address in your prenup. While the list above identifies the majority of the most-common issues covered, your individual circumstances may warrant addressing additional issues as well. When making decisions about things like ownership and distribution of property, you need to have an accurate understanding of Illinois Law as well. For example, if your only concern is protecting assets that you own already, these assets may already be protected under Illinois’ equitable distribution law.
2. Drafting Unambiguous and Legally-Enforceable Terms
Second, once you decide what to include (and what not to include) in your prenuptial agreement, you need to draft unambiguous and legally-enforceable terms. If any provision of your prenuptial agreement is unclear or leaves room for two (or more) possible interpretations, then it could still lead to costly disputes during your marriage or divorce. Additionally, beyond the substantive issues you want to cover, there are various legal terms that need to be included in your agreement as well, and an experienced family law attorney will be able to help ensure that your prenuptial agreement will be enforced as you intend.
3. Reaching an Agreement with Your Soon-to-Be Spouse
Finally, the thought and preparation you put into your prenuptial agreement will only be worthwhile if your significant other is willing to sign. As with many aspects of marriage, signing a prenuptial agreement is often about compromise; and, if you are taking legal steps to protect yourself, you can expect your soon-to-be spouse to want to take steps to protect himself or herself as well. When should you be willing to concede? When do you need to stand firm? How do you stand firm when your ultimate goal is to lay the foundation for a loving and healthy marriage? These are all questions an experienced family lawyer can help you answer.
Schedule a Free Initial Consultation in Gurnee, IL
If you would like more information about preparing a prenuptial agreement in Illinois, we encourage you to contact us for a free, no-obligation consultation. To speak with Gurnee, IL family lawyer Deanna J. Bowen in confidence, please call 847-623-4002 or request an appointment online today.