Prenuptial & Premarital Agreements in Illinois

 Posted on May 26, 2014 in Family Law

Prenuptial Agreements

The ‘prenup’ is a legal document that has worked its way into the common terminology of the American household. Stories of millionaire-philanthropists marrying partners a fraction of their age usually garner the question, “did they sign a prenup?” As a result, prenuptial agreements are usually recognized as a tool for the rich to ensure that their husband or bride-to-be is genuinely interested in them as a human being, and not attempting to execute a convoluted plan to divest the wealthier partner of their holdings after a divorce.

This ideology, however, only addresses a singular aspect to a complex legal document. Therefore, it is important to discover the actual composition and implications of the well known prenuptial agreement.

It is Not a Prenup

Illinois, through 750 ILCS 10, has enacted the Illinois Uniform Premarital Agreement Act. Under this, the well known prenuptial agreement gains a foothold in the statutory scheme as a premarital agreement. For all intents and purposes, the idea and operation of the premarital agreement is exactly the same as the prenuptial agreement, merely dawning the different title.

You Have to Tie the Knot

More common sense than anything else, the premarital agreement is an agreement between prospective spouses made in contemplation of marriage and is effective upon marriage. A premarital agreement is ineffective against a potential spouse should one party choose not to go through with the marriage. However, that is not to say that domestic partners cannot otherwise enter into agreements; they are just not considered premarital agreements.

Appropriate Formalities

Premarital agreements are contracts. As such, they follow the tried and true principles requiring the document to be in writing and to be signed by both parties. While contract theory may outline unique circumstances where a contract is enforceable otherwise, premarital agreements must abide by these rules. The only caveat is that they do not require consideration.

Rights, Property, and Laws

Illinois statute outlines the extent that premarital agreements can and cannot affect the outcome of a divorce. Premarital agreements can, for example, contain information with respect to any of the following:

• The responsibilities of each of the parties either separately or together;

• The right to do what they wish with any properties or similar assets;

• The dispensing of property upon dissolution, separation, or even death;

• The end of spousal support, or the changing of such agreement;

• The making of an estate planning arrangement to enact the details of the agreement;

• The ownership rights of any death benefits from a life insurance policy;

• The choice of law managing the creation of the agreed upon document; and

• Any other matter, not including personal obligations, which may not be in violation of a law.

However, it should be strongly noted that a premarital agreement cannot modify the right of supporting a child and may not adversely affect any such award or payment of child support.

Getting Out of It

Loopholes in evading premarital agreements are similar to those in contract law. Parties who execute the agreement under duress or otherwise do not execute the agreement voluntarily will not be governed by the agreement, if it can be proved. Unconscionable agreements are also not enforceable.

In order for an agreement to be unconscionable, the person claiming this needs to prove that they were shown an adequate description of the obligations or properties of the spouse, that they did not waive any disclosure right in writing, and that they did not possess, or could not have possessed, a reasonable idea of what the other party owned in terms of finances and properties.

Getting Help in Illinois

Premarital agreements are extremely complex in nature. Not only are you working with family law, but you also must consider specific circumstances at the time of execution, circumstances at the time of divorce, applicability of case law and statute, and the application of contract law. It is important to find competent and experienced legal help with your Illinois divorce.

Our attorneys can help you by providing years of experience with complex divorces, and can assist with the complicated addition of a premarital agreement in your specific case. Contact one of our Illinois family law attorneys today to get the legal help you need.