Most would probably agree that money is a source of friction in many marriages and personal relationships. This friction can lead to serious disagreements and eventually erupt into open conflict, and perhaps even divorce. A premarital agreement gives couples the opportunity to address financial issues before this friction develops, so it never has the chance to become a wedge that separates man and wife. These contracts are especially well-suited for second and subsequent marriages, because in addition to financial matters, the parties can make inheritance and other testamentary provisions.
Illinois law encourages the use of marital agreements to resolve actual and potential conflicts, since mutual understanding is almost always a better option that expensive and time-consuming litigation.
Elements of a Premarital Agreement
These agreements are basically like any other contract, in that certain elements must be in place to make them enforceable. There are two areas of note.
First, although oral contracts are enforceable, in most cases, a spousal agreement must be written. Second, it must contain consideration. In other words, both parties must either receive something that has tangible value or give up a right they would otherwise be able to exercise.
What It Can Do
Under the law, a premarital agreement can cover almost any potential source of conflict, including:
- Mortgage and real property management rights;
- General rights to marital property;
- Elimination or modification of spousal support;
- Property disposition upon divorce or separation;
- Ownership of a life insurance policy;
- Choice of law provisions;
- The making or execution of a will or trust; and
- “[A]ny other matter” that is “not in violation of public policy or a statute imposing a criminal penalty.”
Child support is off limits, as these provisions are not part of the marital property settlement, even though money technically changes hands. Matters related to the children of the marriage must be addressed at the time of divorce.
In addition to their potentially broad nature, spousal agreements are also relatively easy to enforce. However, there are two defenses:
- Lack of Voluntariness: Illinois law basically requires physical coercion in this area; even a statement like “sign this agreement or the marriage is off” may be insufficient to show involuntariness.
- Unconscionable When Made: If the agreement becomes one-sided later, for example, if a company goes public and its value skyrockets, that development is not a defense to enforcement. In addition, parties seeking to invalidate an agreement must prove that they did not receive a “fair and reasonable” disclosure, did not waive the right to further information, and could not ascertain that information.
A premarital agreement can help get a marriage started on a sure foundation. For a free consultation with an experienced Naperville family law attorney, contact our office. After-hours appointments with a lawyer are available.