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The Ins and Outs of Prenuptial Agreements in Illinois: How to Protect Yourself

In the past decade, prenuptial agreements have been on the rise among the soon-to-be-wed. Historically, premarital agreements, which dictate the terms and conditions of the dissolution of marriage, were seen to be an insult to the institution of marriage, and only for the rich and famous.

However, they have since become more popular with the general population. When deciding whether to create a prenuptial agreement with your beloved, it is important to understand what terms you may include, and which terms may invalidate the agreement from the start.

Prenuptial Agreements in Illinois

In Illinois, the Uniform Premarital Agreement Act outlines the scope of the prenuptial agreement. The scope of the agreement may include the rights and obligations of the parties with respect to:

  • Their separate and marital property;
  • The disposition of property at the occurrence or nonoccurrence of a condition and/or at the couple's separation, divorce, or death of one of the parties;
  • The extent of alimony and spousal maintenance payments; and
  • Any other matter that is not prohibited by public policy or a criminal statute.

Drafting a prohibition against paying child support is not permitted in a premarital agreement. Once the prenuptial agreement is drafted (the agreement is required to be in writing, and not an oral agreement), both parties must sign. The agreement becomes effective at the time of marriage.

Reasons a Prenuptial Agreement May Be Invalidated

There are, however, reasons in which the prenuptial agreement may not be enforced. An agreement may be invalidated for a number of reasons:

  1. It is a requirement that each spouse make a complete and full disclosure of the assets and financial obligations that they have coming into the marriage. It is common for spouses to estimate their assets at a lower value or not disclose the assets or financial obligations at all so as to keep the property outside the scope of the agreement. Not providing the correct information could invalidate a prenuptial agreement.
  2. A prenuptial agreement may be invalidated if the spouse can show that coercion and duress were present and/or the spouse lacked mental capacity (i.e., the spouse was under the influence of drugs or alcohol or ill).
  3. One of the spouses signed without an independent legal representative. It is important that each of the spouses, after completion of the initial draft of the agreement, review it with separate legal counsel. These types of agreements, especially when there is a disparity in wealth between the couple, may be lopsided and one party may feel that he or she has decreased bargaining power. Separate counsel will help equalize the bargaining power between the couple.

Other Included Provisions that May Be Unconscionable

Certain provisions might be considered unconscionable, but it is up to the court to decide. These provisions generally correspond with personal rights and obligations, such as weight gain, childrearing decisions, and the number of times per year family and in-laws may visit the couple. A new trend seen is to include social media clauses, restricting the right of couples to post to social media sites any embarrassing or nude photos or posts that may harm the reputation of one of the spouses. This would ensure that private affairs stay solely between the couple.

Naperville Family Law Attorneys

If you and a loved one are considering whether to draft up a prenuptial agreement before the big day, it is important that you both speak with an experienced Naperville family law attorney who will be able to provide guidance as to whether a prenuptial agreement is right for you and the common advantages and disadvantages of this type of agreement. It is important to not wait until the last minute as these types of agreement should be thought out, discussed, and both parties should feel that their needs are being met.

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