Prenuptial Agreements in Illinois: What They Can and Cannot Do

 Posted on July 15, 2015 in Prenuptial and Postnuptial Agreements

A prenuptial agreement is a legal document that defines a private agreement made by two people who intend to legally marry. These types of agreements are commonly used to predetermine how the new couple’s estate will be distributed if a divorce or death occurs. In the event that divorce does occur and no prenuptial agreement exists, the couple’s estate will be distributed according to the the Illinois state laws governing the dissolution of marriage.

What Can a Prenuptial Agreement Cover?

As a private agreement, a prenuptial agreement can be highly customized to fit the unique needs of the couple in question. The prenuptial can address any number of topics, including issues such as pre-existing debt of one or both partners, asset allocation, and spousal maintenance. There are no minimum or uniform requirements that must be included.

For example, one partner may have children from a previous marriage and would like to designate specific assets or property as separate from the new marital estate. Similar scenarios also apply to businesses, retirement accounts and property acquired prior to the marriage. These are all assets that one partner may wish to keep separate from what will become the marital estate.

Prenuptial agreements can also define:

• Which spouse will be responsible for maintenance payments in the event of divorce, including the amount and time period of payments;
• Division of property between the spouses in the event of divorce;
• Specific rights of each spouse regarding the use, sale, transfer, management, or disposal of property; and
• Each spouse’s right of ownership to the death benefits provided in the other’s life insurance policy.

What Are the Limitations of Prenuptial Agreements?

While most prenuptial agreements are enforced by the court, the court will typically not enforce an agreement that is determined to have been signed under duress or would result in catastrophic financial conditions for one spouse. Some scenarios that would invalidate a prenuptial agreement include:

• Due to the financial terms of the agreement, one spouse would be eligible to receive public assistance;
• One spouse or both failing to accurately disclose all of their assets and debts prior to signing; and
• Severely unfair or unjust terms of agreement, also referred to as being unconscionable.

Prenuptial agreements are also prohibited by law from including clauses related to the support or custody of the couple's children. These considerations may only be made if and when they become necessary, and are to take into account the current circumstances of the family, not those in place at the time of the prenuptial agreement.

When challenged, the court will determine the severity of issues such as duress or unconscionability and if the level of severity is high enough to result in the prenuptial agreement being unenforceable. While a prenuptial agreement does not have to be drafted by legal counsel to be enforceable, it is prudent to have the guidance of a skilled Kane County family law attorney to help ensure that your agreement addresses your needs while remaining in compliance with the law. If you are considering a prenuptial agreement or have questions about how such an agreement can help your marriage, contact our office today.