Prenuptial Agreements and Divorce

 Posted on April 23, 2018 in Premarital Agreement

Prenuptial agreements, also called premarital agreement, are becoming more and more common in this day and age. However, many remain unaware that they are not cure-alls; there are certain things that are not permitted to be disposed of or decided within an agreement of this nature. If you are getting married in Illinois and you and your future spouse decide to execute a prenuptial agreement, you must be aware of what can and cannot be included, or you run the risk of the agreement being held to be invalid.

The ILUPAA

Illinois has adopted the Uniform Premarital Agreement Act (UPAA or ILUPAA), which establishes specific guidelines and requirements for prenups that must be upheld. A prenup is essentially a contract, and like any other contract, certain things may not be included, and certain things can only be included if done so properly. The contract does not become effective until the marriage actually takes place, but once it is effective, it will be upheld unless it was unconscionable.

The primary purpose that most use prenups for is to establish separate (non-marital) property and to establish disposition of assets after a divorce, or if one spouse predeceases the other. It is legal to use a prenup to state, for example, that the marital home will remain in the possession of one spouse or the other, or in the possession of the custodial parent if any children are born of the marriage. It is also permissible to discuss spousal support or life insurance benefits in the event of death or dissolution of marriage - generally, any matter that is not a crime or against the public policy of the state of Illinois is acceptable to be dealt with in a prenup.

Prohibited Matters

There are certain specific issues that may not make up any part of a prenuptial agreement, due to their being against public policy or being the rights of someone else and thus not able to be contracted away. A common example is a child’s right to support, which under Illinois law does belong to the child (as opposed to belonging to either parent). In contract law, one cannot negotiate away a right or benefit that does not belong to them in the first place.

A prenup can be declared unenforceable in its entirety if it can be shown that it was only signed under duress, if credible accusations of fraud surround it, or it can be shown that one spouse was pressured to sign, the document will likely not be enforced, because to enforce it would be against public policy - in other words, fundamentally unfair. If a prenup is invalidated, a court will usually follow the standard list of factors that it uses in most divorces in order to divide assets equitably - for example, the length of the marriage and both spouses’ future earning potential.

Call an Experienced Attorney

Used correctly, a prenuptial agreement can save you and your spouse time and money. However, it must be drafted in a way that it does not run afoul of public policy or Illinois law. If you have questions about yours, contacting our skilled DuPage County family lawyers at the office of Kathryn L. Harry & Associates, P.C. may help. Reach out to us today to set up an appointment.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&

http://www.ilga.gov/legislation/ilcs/documents/075000050K503.htm