Prenuptial Agreements in Illinois

Learn more about prenuptial agreements in Illinois.

By , Attorney · Cooley Law School
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Couples considering marriage today are three times more likely to enter into a prenuptial agreement than spouses were ten years ago. No longer just a protection for the wealthy, prenuptial agreements are used by couples from all income brackets to decide how to divide their property if they divorce.

You may be curious how a prenuptial agreement works in your state. This article will explain what issues a prenup agreement can determine in Illinois and how courts decide whether or not to enforce a prenuptial agreement upon divorce.

What Is a Prenuptial Agreement?

A prenuptial agreement, or "prenup," is an agreement between potential spouses, made before marriage. A prenuptial agreement typically spells out how the couple will handle assets, debts, and other financial issues during their marriage and if they decide to split up. The agreement goes into effect when the couple gets married.

Who Should Get a Prenuptial Agreement?

While many people believe that prenuptial agreements are "unromantic," prenuptial agreements help spouses avoid disputes over property and can improve marital happiness. Each year, more couples choose to enter into prenuptial agreements before marriage to remove doubt from what will happen to their property if they divorce.

There are many reasons you may want to consider a prenuptial agreement. If you have children from another marriage, a premarital agreement can help protect their future inheritance. If you have a business, retirement accounts, or any property you own by yourself, you may want to protect those assets from potential division if you divorce. You may also want to determine ahead of time what will happen to property you acquire during the marriage. A prenuptial agreement can help with all of these issues.

Of course, your property and debts will be divided by the court when you divorce, whether or not you have a prenuptial agreement. However, creating your agreement allows you and your partner to decide who will get what, rather than leaving it up to a judge.

What Issues Can a Prenuptial Agreement Cover in Illinois?

Prenuptial agreements in Illinois may address any or all of the following issues:

  • whether one spouse pays the other alimony after divorce, including the amount and duration of payments
  • each spouse's ownership of property upon divorce
  • each spouse's rights to use, sell, transfer, manage or dispose of property
  • either spouse's obligation to create a will to carry out the terms of the agreement
  • either spouse's ownership rights in the death benefit from a spouse's life insurance policy
  • which state's law will apply to the agreement in case of a dispute, and
  • any other matter for which two people can legally contract.

Spouses can amend their prenuptial agreement at any time after they are married. Any amendment to the prenuptial agreement must be in writing and signed by both spouses. Spouses can also revoke the agreement altogether by putting their intentions to cancel it in writing and signing it.

Can a Prenuptial Agreement Determine Child Custody and Child Support in Illinois?

A child's right to child support cannot be affected by a prenuptial agreement.

The right to receive child support belongs to the child, and parents can't contract in advance how much the child will need at the time of divorce. Similarly, a parent can't give away a child's right to receive financial support from the other parent.

Also, child custody can't be decided in advance by a premarital agreement. The couple or the court can decide child custody at the time of divorce. Parents and the judge must base child custody on the child's best interests at the time of the divorce.

Learn more about Illinois Child Custody and Support.

How Can I Ensure my Prenuptial Agreement Is Enforceable in Illinois?

Illinois, like many states, has adopted the Uniform Premarital Agreement Act (UPAA). The UPAA is a set of guidelines that govern how courts decide whether a prenuptial agreement is enforceable.

All prenuptial agreements must be in writing. Both spouses must also sign the agreement for it to be enforceable.

Prenuptial agreements do not have to be witnessed by anyone besides the couple, and neither party must record it with the clerk of court.

While a prenuptial agreement doesn't legally have to include a schedule of each spouse's assets and debts, it's a good idea to include these lists. A court is more likely to enforce the agreement if it consists of proof that each spouse knew the other's financial situation before signing it.

When Will the Court Refuse to Enforce a Prenuptial Agreement?

Courts generally enforce most prenuptial agreements. That one spouse receives a disproportionate share of assets won't make the agreement automatically unenforceable. A judge won't enforce the agreement under these circumstances:

  • one spouse did not sign the agreement voluntarily (signed under duress)
  • the financial terms of the agreement would make one spouse eligible to receive public assistance
  • the terms of the agreement are severely unfair or unjust (also referred to as being "unconscionable"), and
    • one spouse failed to disclose assets and debts before signing the agreement
    • the spouse who did not receive the other spouse's honest financial information did not waive the right to receive it, and
    • the spouse who did not receive the other spouse's financial information could not have known the information any other way.

The judge hearing the divorce case will decide whether the agreement is unenforceable due to duress or because it is unconscionable.

For duress to render an agreement unenforceable, it is not enough that one spouse told the other that there would be no marriage without a prenuptial agreement. One spouse must have threatened the other to the degree that the threatened spouse had no choice but to sign the contract. The court may take into account the period between the agreement and the marriage ceremony when determining whether either spouse signed under duress.

Courts won't throw out a prenuptial agreement due to unconscionability unless it is an extreme situation. The court will not invalidate the contract unless it results in catastrophic circumstances for one spouse. In Illinois, spouses don't need to have independent attorneys review the prenup for the agreement to be enforceable.

Sometimes a couple's marriage is void (legally invalid) because one spouse was too young at the time of the marriage, was still married to another person, or was mentally incapable of consenting to marriage. In these cases, the court will usually invalidate the prenuptial agreement, unless it would have an extremely unfair result to a spouse.

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