What Can and Cannot Be Addressed in a Prenuptial Agreement

 Posted on June 14, 2017 in Prenuptial and Postnuptial Agreements

Prenuptial agreements have become popular among marrying couples. One of the most-cited reasons for such an agreement—sometimes called a prenup—is that the couple wishes to prepare for the possibility of a divorce, in the event that it occurs.

Reasons for a Prenup

Divorces in Illinois are fairly common. According to the Illinois Department of Public Health, there were about 69,500 marriages and nearly 29,500 divorces in 2013. Given these statistics, a prenuptial agreement between the spouses that details what will happen if a divorce occurs may be prudent.

Another reason couples enter into a prenup is to protect children from a previous marriage or relationship. If one spouse has children and then gets married, even if the marriage lasts only a short time, the other spouse could walk away with a substantial amount of money that could otherwise be used for the benefit of the children.

Enlist an Attorney in Drafting a Prenuptial Agreement

A prenup should only be drafted by with the help of an attorney familiar with marital property law. Also, each spouse should have his or her own counsel to review the terms of the agreement and explain any rights that may be augmented, waived, or compromised by the prenup. An attorney should also draft the agreement because there are certain provisions that cannot be included. In addition, specific language must be used in order for the agreement to be enforceable.

If you are considering a prenup, your agreement may address:

• Whether alimony will be paid, in what amount, and for how long;
• Each party’s property and debt ownership in the event of divorce;
• Allocation of an inheritance by either spouse;
• Ownership or beneficiary rights to the other spouse’s life insurance policy;
• Each party’s rights to use or sell certain property; and
• Choice of law provisions.

Your agreement may not include provisions regarding the allocation of parental responsibilities (child custody) or child support for any children you have with your spouse. According to Illinois law, these considerations may only be addressed at the time they become necessary, as the current circumstances must be taken into account.

Other Prenup Requirements and Amendments

To be enforceable, prenuptial agreements must be in writing and must be signed by both spouses. The signing of the agreement does not need to be witnessed or notarized, and the agreement need not be filed with the clerk of court. 

Prenups can be amended or canceled at any point during the marriage so long as both parties agree in writing. An attorney should also oversee this process.

Contact a Kane County Prenuptial Agreement Lawyer

One reason couples opt for a prenup is so they can be certain how finances will be handled in the event of a divorce. By hiring a skilled Geneva family law attorney, both spouses will have confidence that the agreement will be enforced by the courts. Call our office today at 630-232-9700, and schedule an appointment with a member of our experienced team.

Sources:

http://www.dph.illinois.gov/data-statistics/vital-statistics/marriage-divorce-statistics

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59