Back to the Basics: Do's and Don'ts of Prenuptial Agreements

 Posted on June 27, 2014 in Family Law

Say the word "prenup" and many will immediately shudder. At best, it seems a tool for the rich and famous. At worst, it conjures images of a disposable marriage. The truth is neither. Prenups are for people with assets of any kind. Getting one only means that you are thinking about your future, and not necessarily thinking that your marriage will fail.

What is a Prenuptial Agreement?

Prenuptial agreements (also known as antenuptial agreements) are simply contracts made between two people before they marry. The agreement memorializes what will happen if the couple divorces or if one spouse dies before the other.

What Are the Requirements for Forming a Valid Prenuptial Agreement?

Illinois law allows married persons to enter into contracts with each other. This law sets the legal foundation for prenuptial agreements. If you look at the statute, you will notice that it is remarkably brief. It allows couples to create prenups. However, it does not say what the prenup can or cannot look like.

Though the statute does not specify, your agreement is more likely to be upheld if the following requirements are met:

• The agreement is in writing;
• It is signed by both parties, and notarized;
• The contract was made by the parties in contemplation of their marriage;
• Both parties entered the contract voluntarily;
• The agreement was made an appropriate time before the wedding took place;
• Each party was represented by separate legal counsel;
• There was full disclosure of assets and finances;
• Acceptance of the agreement was not a condition of marriage; and
• The contract was not unconscionable.

Two points deserve clarification. First, what does it mean to make the agreement an "appropriate time" before the marriage? This simply means that the court will look unfavorably on agreements that are sprung on one party a few days (or hours) before the wedding. The amount of time that the court deems appropriate will vary depending on the other facts of the case. Second, what does it mean for a contract to be "unconscionable"? An unconscionable contract is one that is so grossly unfair that the court cannot allow it to stand. The court will determine unconscionability by looking at the facts of the case.

Note that prenuptial agreements are generally held to be valid, regardless of any marital misconduct that contributes to the termination of the union. However, the parties can choose to take marital misconduct into account when drafting their contract. For example, the prenup might specify that a spouse guilty of adultery will receive less spousal support than they would if the marriage was terminated because of irreconcilable differences.

What Can a Prenup Contain?

So long as the above requirements are met, parties are allowed a great deal of discretion in crafting their agreements. For example, in the case of a divorce, they can:

• Decide in advance the terms of their divorce or dissolution;
• Agree on the division of their assets;
• Set an amount of spousal support;
• Divide debts brought into the marriage; and
• Protect the assets that each party has brought into the union.

What Can a Prenup Not Contain?

Parties have a lot of freedom to create their prenuptial agreements, but that freedom is not absolute. Public policy generally prohibits parties from:

• Forcing the religion of one partner on the other;
• Deciding child custody or child support in advance; or
• Setting the terms so that they promote or encourage divorce.

Contact an Illinois Family Law Attorney

If you are thinking about entering a prenuptial agreement, contact an Illinois family law attorney today. Though only you and your partner can decide if a prenup is right for you, an attorney can help you discover what assets should be included in your agreement, help you brainstorm what terms you want included (or not), and draft a legally enforceable contract. Please contact the experienced family law attorneys at Mevorah & Giglio Law Offices for support today.