At O’Dekirk, Allred, and Associates in Joliet, we have numerous clients who come to us for help in understanding Illinois law and prenuptial agreements. These days, it’s not that unusual for a couple who’s considering marriage to also contemplate whether or not a prenuptial agreement is right for them. The first step is seeing how this arrangement works in the state of Illinois.
The Basics of Prenuptial Agreements
Prenuptial agreements create a financial understanding both during and after a marriage. It’s made before marriage and it is essentially a contract between spouses. Prenuptial agreements determine how a couple will handle their debts, financial issues, and assets both during their marriage and if they ever decide to divorce. They are also used to delineate the financial circumstances of each spouse and make determinations about how everything will be managed if there is a divorce. The agreement becomes effective upon marriage.
Who Might Want a Prenuptial Agreement?
A prenuptial agreement may not seem all that romantic, but they can often be very useful and actually improve marital happiness by addressing your financial issues ahead of time. Though prenuptial agreements used to be somewhat unusual, over time they have become very common. There are a number of reasons to consider a prenuptial agreement, such as:
- If you have children from a previous marriage. You may want or need to protect their inheritance, as well as their future financial interests.
- If you have a business, you may have interests that would need protection in a potential divorce, or even potentially during your marriage.
- If you have assets, retirement accounts, or property, you may want these to be clarified as personal assets which will not be split if a divorce occurs.
- You may want an agreement about any property or assets that are acquired during your marriage to outline how such acquisitions will be handled both during the marriage and after the marriage if there is a break-up.
What Can a Prenuptial Agreement in Illinois Cover?
In Illinois, prenuptial agreements can cover some or all of the following:
- Whether one spouse pays another alimony in case of a divorce. This can include both the amount and the duration.
- Each spouse’s property ownership following a divorce.
- Each spouse’s right to sell, transfer, manage, use, or dispose of property both during the marriage and following the occurrence of a divorce.
- Either spouse’s responsibility for having a will that will carry out the terms in the prenuptial agreement.
- The ownership rights of either spouse in the death benefit from the other spouse’s life insurance policy.
- Any other issue that can be legally part of a contract between two people.
Can a Couple Make Amendments to a Prenuptial?
Yes, if both spouses want to alter or revoke their prenuptial agreement they can as long as they are still married. Alterations to the prenuptial agreement must be signed by both spouses and the changes they wish to make must be in writing.
Illinois Law and Prenuptial Agreements, Child Custody
Prenuptial agreements cannot determine or change a child’s right to receive child support. The right to child support belongs to the child, not the parent or legal guardian, and as a result, parents cannot determine, change, or cancel child support via a prenuptial agreement.
Additionally, prenuptial agreements cannot decide child custody. Depending on the situation, parents or the court will decide custody for the child or children at the time of the divorce, based on the child’s best interest at the time of the divorce.
Illinois Law and Prenuptial Agreements, Enforcement
Like a number of other states, Illinois uses the Uniform Premarital Agreement Act (UPAA). UPAA guidelines outline for the courts whether a prenuptial agreement is enforceable in the state.
Prenuptial agreements do not require a witness beyond the couple involved, and the document must be in writing and signed by both spouses. Additionally, prenuptial agreements are not required to be recorded by a court clerk. While a listing of both spouses debts, assets, and property is not legally required, a court is more likely to enforce the agreement when it is clear that both parties had a clear understanding of each other’s financial situation.
Avoid Nullifying Enforcement of Your Prenuptial Agreement
There are circumstances, which will prompt a judge to not enforce the terms of your prenuptial agreement. These include:
- If one spouse signed the agreement under duress. Duress is not simply that the marriage would not take place unless the prenuptial agreement was signed. There must have been the kind of threat that the spouse had no other choice but to sign. The amount of time between the signing of the agreement and the marriage may play a role in this determination as well
- If following the agreement would result in one spouse needing public assistance
- The terms of the agreement are unconscionable (or severely unfair/unjust)
- If not all assets were disclosed or the disclosure was dishonest (i.e. the spouse did not waive receiving the financial information)
- If there was no other way for a spouse to know about the other’s financial situation
It is up to the judge hearing the divorce case to decide whether the prenuptial agreement is unenforceable due to the circumstances. Attorneys are not required for the judge to make a determination whether the agreement is enforceable.
Other Situations that Invalidate the Agreement
There are additional circumstances that would invalidate a prenuptial agreement. If one spouse was too young to marry, the agreement will be invalidated. Also, if a spouse was still married to another person, the agreement will be considered invalid. Spouses who are mentally deficient, legally incompetent, or insane cannot be expected to have fully understood the prenuptial agreement and such a situation would render the agreement invalidated.
Now that you understand more about Illinois law and prenuptial agreements, come to O’Dekirk, Allred, and Associates Joliet for help in putting your prenuptial agreement together so that you and you spouse are better protected both during your marriage and in the unfortunate event of divorce. Simply contact us today for a free initial consultation.