Illinois Prenuptial Agreements Explained

In this article, we explain Illinois prenuptial agreements (also known as premarital agreements), including what is a prenuptial agreement, how do Illinois prenuptial agreements work? When is a prenuptial agreement appropriate? What issues can a prenuptial agreement resolve? And when is a prenuptial agreement enforceable?

What is a Prenuptial Agreement?

A prenuptial agreement is a contract between two people who intend to marry, resolving issues that may arise with a divorce, such as property division and alimony payment.

How do Illinois Prenuptial Agreements Work?

Illinois prenuptial agreements are governed by the Illinois Uniform Premarital Agreement Act (750 ILCS 10/1, et seq.). In order to be valid, premarital agreements must be in writing and signed by both parties. Prenuptial agreements need not be witnessed or filed with any governmental agencies or courts.

Prenuptial agreements only become effective after the parties get married. If the marriage never occurs, any prenuptial agreements are void. Prenuptial agreements can be amended or revoked after marriage by the written agreement of both spouses.

When is a Prenuptial Agreement Appropriate?

Prenuptial agreements can be especially advantageous in a number of circumstances:

• Reducing the Expense and Stress of Potential Divorce Proceedings: If you have been previously married and have been through an expensive and litigious divorce, a prenuptial agreement is a great way to ensure that this does not happen again. Any issues that are appropriately resolved in the premarital agreement will not have to be litigated in a potential divorce. This can save both parties significant money on attorney fees, as well as a significant amount of stress and negative feelings toward one another. For people who have been through a difficult divorce, prenuptial agreements are also an alternative to simply choosing not to get married again.
• Protection of Assets Acquired Prior to the Marriage: If one spouse has significantly more assets than the other or critical assets like a business that they built from the ground up, a prenuptial agreement can prevent these assets from being considered marital property that is subject to division in the event of a divorce.
• Preservation of Assets for Children from a Prior Marriage: If you have children from a prior marriage, you may want to ensure that your premarital assets are preserved for their benefit rather than divided in the divorce. A prenuptial agreement can accomplish this.
• Declaring Property Incurred Prior to Marriage to Be Marital Property: Prenuptial agreements can also be used to declare that specific property acquired before the marriage will be treated as marital property and subject to division in the event of a divorce.

What Issues Can a Prenuptial Agreement Resolve?

Prenuptial agreements can resolve the following issues related to divorce:

• Whether maintenance payments (alimony) will be paid by one spouse to another after a divorce, and, if so, the amount and duration of the payments;
• How assets and debts will be divided upon divorce;
• Issues related to ownership of death benefits of one another’s life insurance policies;
• Agreements to execute wills and trusts to distribute assets in a particular manner upon death; and
• Any other issues with respect to which individuals can legally contract.

Prenuptial agreements cannot resolve issues related to child support or allocation of parenting time and responsibility. Illinois family law courts will ignore any premarital agreements on these subjects and instead determine these issues.

When is a Prenuptial Agreement Enforceable?

The general rule is that premarital agreements are enforceable so long as they are in writing and signed by both spouses. Illinois divorce courts will honor the terms of the agreement regarding the majority of issues in a divorce, with the exception of child support and allocation of parental time and responsibility.

There are, however, a few bases upon which a prenuptial agreement may be found to be unenforceable:

• Fraud: If one spouse lied about or concealed their assets at the time that the prenuptial agreement is signed, the prenuptial agreement will be invalid.
• Duress: Duress occurred when one of the spouses was induced by a wrongful act or threat of the other to sign the prenuptial agreement under circumstances that deprived them of their own free will. Courts are more likely to invalidate a premarital agreement based on duress if the person seeking to invalidate the agreement did not consult their own attorney prior to executing the contract and was not informed of their right to do so.
• Unconscionability: A prenuptial agreement is unconscionable when it is oppressively and unreasonably one-sided and where the party disadvantaged by the contract was deprived of any meaningful choice at the time of signing. Courts look at whether the contract was unfair at the time it was executed, not at the time of the divorce. In order to invalidate a premarital agreement based on unconscionability, the party seeking to invalidate the agreement must show, in addition to an unconscionable contract, that the other party did not reasonably disclose their property or debts and that the party seeking to invalidate the contract did not have knowledge of the same.

What is the Difference Between a Prenuptial Agreement and a Wedding Contract?

The purpose of a wedding contract is to determine how the costs of the wedding and other debts will be divided if an engagement is called off. Prenuptial agreements, on the other hand, are not effective until the wedding actually occurs and would therefore not be able to deal with such issues.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

About the author

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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