A prenuptial agreement (also called a premarital agreement) is a legal contract entered into before marriage specifying how assets, debts, and financial rights will be handled during the marriage and in the event of divorce or death. It is governed by the Illinois Uniform Premarital Agreement Act.
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If you are engaged (or are already married) and want to ensure that you have a mutual understanding of certain obligations or specific divisions are in place, should something go awry in your marriage, then a Premarital Agreement (also known as a Prenuptial Agreement) or a Postnuptial Agreement may be the best option. These types of Agreements should not be viewed as an act of bad faith or distrust but rather a way to ensure that both parties have a clear understanding and mutual agreement as to how finances and other non-child-related matters will be handled in the event of a separation and divorce. Jennifer R. Ward, Esquire, was an active public speaker on this topic, including a matrimonial-related lecture series at The Latin School of Chicago Adult Education Program.
Premarital Agreement (a/k/a Prenuptial or Antenuptial Agreement)
This is a legally binding contract that the parties enter into prior to their marriage. It defines and details the parties’ agreement as to how financial and other non-child-related matters will be handled if and when the marriage ends, either by divorce or the death of one of the parties. There are a few requirements as to what must be contained in a Premarital Agreement, but generally, all of the terms contained in a Premarital Agreement are determined and mutually agreed upon by both parties.
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Preparing a Premarital Agreement allows parties to openly discuss any issues they think should or should not be included in the agreement, reach compromises as to any issues or concerns, and receive detailed explanations from their respective counsels regarding the provisions contained in the Agreement. As with any other contract, all terms of a Premarital Agreement must be agreed upon by both parties. If one of the parties was coerced, under duress, involuntarily signed, or otherwise executed the prenuptial agreement under false pretenses, it may not be enforceable to that end.
Postnuptial Agreement (a/k/a Postmarital Agreement)
This is a written agreement that the parties enter into after they are married. Married couples may elect to enter into a Postnuptial Agreement for the same reasons as parties entering into a Premarital Agreement or when they wish to provide for a specific division of assets or the fulfillment of certain obligations in the event of dissolution of marriage or death.
Both types of these agreements allow parties to openly discuss financial matters between them so that each has a clear understanding and expectation concerning their financial rights and obligations, both during the marriage and in the event of a divorce or the death of one of the spouses. It is important to note that issues of child support and parenting time cannot be incorporated into either of these agreements.
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FAQs about Prenuptial and Postnuptial Agreements in Illinois
Are prenuptial agreements enforceable in Illinois?
Yes. Illinois courts enforce prenuptial agreements that were entered into voluntarily with full financial disclosure, with the opportunity for each party to seek independent legal advice, and that are not unconscionable. The agreement must be in writing and signed before the marriage.
What can be included in an Illinois prenuptial agreement?
A prenuptial agreement can address characterization of property, spousal maintenance rights and limitations, protection of business interests, treatment of debt, and inheritance rights. Child custody and child support cannot be predetermined in a prenuptial agreement.
What makes a prenuptial agreement invalid in Illinois?
An agreement can be invalidated if signed under duress or coercion, if there was inadequate time to review it, if there was incomplete financial disclosure, if terms are unconscionably one-sided, or if signed without opportunity to consult independent counsel.
How far in advance of the wedding should a prenuptial agreement be signed?
Best practice is to have the agreement finalized at least 30 days before the wedding. Signing the night before can create grounds for a duress challenge. Starting the process three to six months before the wedding is recommended.
Does a prenuptial agreement mean we do not trust each other?
Not at all. A prenuptial agreement is a financial planning tool, not a sign of distrust. Many couples find that the process of creating one — which requires open discussion about finances, expectations, and goals — actually strengthens their relationship.
Can a prenuptial agreement be modified after marriage?
Yes. A prenuptial agreement can be modified or revoked after marriage through a written postnuptial agreement signed by both spouses. Any modification must meet the same legal requirements as the original agreement to be enforceable.
Do both parties need separate attorneys for a prenuptial agreement?
While not legally required, independent legal counsel for each party is strongly recommended and significantly strengthens enforceability. Courts are far less likely to invalidate an agreement where both parties had the opportunity to receive their own legal advice.
What financial information must be disclosed in an Illinois prenuptial agreement?
Both parties must provide fair and reasonable disclosure of property and financial obligations, typically including a schedule of assets and debts, income sources, and information about business interests. Inadequate disclosure is one of the most common grounds for challenging a prenuptial agreement.
Can a prenuptial agreement protect my business in Illinois?
Yes. A prenuptial agreement can specify that a business including any increase in value during the marriage is your separate non-marital property. Without such protection, a spouse may be entitled to a share of business value accumulated during the marriage.
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