Prenuptial agreements are an effective, and increasingly popular, way for partners to make critical decisions about assets and property before tying the knot. With that being said, in the event of a divorce, it is important to keep in mind that a prenup will still have to be enforced in court — a process that might open the door for one spouse to lodge a contest, or for the court to nullify, invalidate, or otherwise choose to not enforce the agreement.
Let’s dig into what you need to know about enforcing a prenuptial agreement in Illinois:
What Is a Prenuptial Agreement?
A prenuptial or premarital agreement — often simply called a “prenup” — is an agreement between prospective spouses made in contemplation of marriage, which becomes effective upon marriage. (Spouses can also create a binding agreement after getting married, using a very similar tool known as a postnuptial agreement, or “postnup.”)
A prenuptial agreement can allow for partners to plan for the potential division of accumulated assets and income, as well as debt — which can add clarity to the marriage and a couple’s respective goals and expectations in the here and now, while also helping to streamline the divorce process and save you the potential cost of litigation and attorney’s fees in the future.
We often say that a prenuptial agreement is a great way to tackle “the three P’s,” empowering couples to:
- Plan for future and changing income needs and circumstances (i.e., what if one partner stays home after having a child, or a spouse’s employment opportunities become limited due to an illness or accident?)
- Protect non-marital assets (such as an inheritance, pre-existing divorce obligations, and an individually or family owned business)
- Provide efficient division of marital property (including the marital residence)
More specifically, a prenuptial agreement can allow couples to make decisions with regards to:
- the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located
- the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property
- the disposition of property upon separation, marital dissolution, death, or another event
- the modification or elimination of maintenance, also known as spousal support
- the making of a will, trust, or other arrangement to carry out the provisions of the agreement
- the ownership rights in and disposition of the death benefit from a life insurance policy
A prenuptial agreement cannot adversely affect the right of a child to support — meaning that it cannot be used to determine, waive, or modify child support. Similarly, a prenup cannot decide allocation of parental responsibilities and parenting time, or be used to appoint a guardian for a child.
How Is a Prenuptial Agreement Enforced Under Illinois Law?
Like many states, Illinois has adopted a version of the Uniform Premarital Agreement Act, which lays out guidelines that determine whether a premarital agreement is enforceable.
Broadly speaking, in order for a premarital agreement to be enforceable, it must be in writing and signed by both parties.
In the event of a separation, marital dissolution, death, or another event specified in the prenup, the agreement must be enforced through the courts. Broadly speaking, this means that the agreement will be presented to a judge, who will determine in a hearing if the document is valid and enforceable based on the details of the agreement and the arguments of each spouse’s attorneys. If the judge ultimately determines that there are no issues with the prenup, he or she will uphold the agreement, allowing its provisions to go into effect.
When Circumstances Might Cause a Prenuptial Agreement to Not be Enforced?
What may cause a judge to decide to not uphold or enforce a prenuptial agreement, in full or in part? Under the Illinois Uniform Premarital Agreement Act, a prenup is not enforceable if it can be proved that:
- one party did not execute the agreement voluntarily (for instance, if they were coerced into signing under duress, or through fraud or forgery)
- the agreement was unconscionable (i.e., extremely unfair or unjust) when it was executed, and that one party
- was not provided a fair and reasonable disclosure of the property or financial obligations of the other party before execution of the agreement
- did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and
- did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party
Additionally, 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 may ultimately require the other party to provide support to the extent necessary to avoid such hardship.
Ready to Move Forward? Our Chicagoland Family Law Office Is Here for You
A prenuptial agreement can relieve undue stress and confusion during a very difficult time in your life. Knowing that your assets are protected and your finances will be in order can help you move forward with confidence and peace of mind. The most important aspect in negotiating a premarital agreement is making sure it is likely to be enforced in a court of law; an experienced and knowledgeable family law attorney will be an immense help in guiding you through the process of creating an enforceable prenup — and navigating the court system, if and when the time comes.
At The Law Offices of J. Jeltes, Ltd., we are here to stand by you during some of life’s most challenging and unpredictable transitions. Our legal professionals are driven, attentive, and dedicated to achieving the best results possible for your unique goals.
We truly understand that every situation is unique, and before hiring our firm our attorneys will provide you with a comprehensive one-on-one consultation to discuss your legal concerns and goals. If you have any more questions about any aspect of prenuptial agreements, divorce, or family law in Illinois, don’t hesitate to reach out to continue the conversation.
