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Kane County family law attorneyA prenuptial agreement (prenup) is a premarital contract regarding a couple’s property and assets, including how they will be handled in the event of a divorce. To be legally enforceable in our state, a prenuptial agreement must conform to the legal requirements contained in the Illinois Uniform Premarital Agreement Act. Even a seemingly small error could render a premarital agreement unenforceable. Here, our family law attorneys highlight four of the most common reasons why prenups are deemed invalid in Illinois.

No Formalized, Written Agreement

In some circumstances, you do not necessarily need a written agreement to have a valid contract. An oral contract is sometimes enforceable in Illinois. However, an informal or oral prenuptial agreement is never valid in Illinois. Under state law, a prenup must be “in writing and signed by both parties.” An informal pre-marriage “deal” is simply not enforceable. Only written and formalized prenuptial agreements will be enforced by state courts.

Prenup Contains Invalid Provisions

Not only does a prenuptial agreement have to be formal, but the contents must comply with strict state rules and regulations. There are only certain things that can be addressed within a prenup. If an agreement contains invalid provisions, the whole thing might be thrown out by a court. As a simple example, you cannot negotiate terms for child custody or child visitation within a prenup. In addition, you cannot pre-determine child support obligations.

Kane County family law attorneyIn today’s world, prenuptial agreements are increasingly common, as people are waiting until they are older to get married for the first time, which also means that they are likely to have accumulated significant assets before they are married. Nobody wants to think about the prospect of divorce, especially before you are even married, but a prenuptial agreement can be greatly beneficial if you and your spouse do eventually decide to call it quits. A prenuptial agreement can help you and your spouse determine the majority of your financial and property division issues with little resistance. Even though a prenuptial agreement is a legal contract, it is not set in stone and can be challenged if you believe the agreement is unfair in some way.

Challenging Your Prenup

As a legally-binding agreement, a prenuptial agreement is also legally enforceable. This means that you must abide by the terms of your prenuptial agreement unless the agreement or portions of the agreement are invalidated. If you feel as if your prenuptial agreement is invalid or unfair, you have the right to ask the court to hear your case. The judge will not simply invalidate a prenuptial agreement because you do not like the terms of the agreement anymore. You must prove that there is a legitimate reason for the invalidation of a section or the entire agreement. Common reasons that a judge may invalidate a prenuptial agreement include:

  • The agreement was disproportionately favorable toward one spouse.

St. Charles IL prenuptial agreement lawyerMany people are familiar with prenuptial agreements—or prenups—and the pros and cons associated with them. However, what most do not know is that they can actually be quite complex and address much more than standard asset division. They are also not as ironclad as popular culture paints them to be. It is imperative that before you enter into a prenuptial agreement, you have a good understanding of exactly how they work.

What to Include and Leave Out

Among the primary reasons that couples choose to enter into a prenup are to protect one spouse from the consequences of the other’s debt, or to ensure that provisions are made for the children of a previous marriage. Inheritance laws in most states do not differentiate between the children of a current marriage or a previous relationship, so if there was a promise to, for example, save a personal item for a child of one’s first marriage, it can be advantageous to note that in a prenup. Prenuptial agreements are legally binding, unless it can be proved that the agreement is unenforceable.

With this rationale for entering into a prenup, it is perhaps not surprising that prenuptial agreements, at their most basic, are about money. The provisions you include should almost exclusively deal with financial matters. A prenup is not the place to discuss future child custody or who should take the trash out every day. While asset division is usually thought to fall under the area of divorce law, earmarking certain items in a prenup is perfectly legal and will help to control the situation if there is a question of inheritance. It is also important to note that Illinois and the other states that have ratified the Uniform Premarital Agreement Act (UPAA) explicitly ban any provisions being made for child support in the event of divorce, but they do permit most provisions regarding spousal support to stand. 

What Are You Not Allowed to Do in a Prenuptial Agreement?A prenuptial agreement is a useful document to have on hand if you and your spouse ever divorce. Though preparing for a hypothetical divorce seems awkward, it can be easier to come to an agreement now on how to divide some assets than it would be during a divorce, when you may feel less inclined to cooperate. The prenuptial agreement creates a framework for a divorce agreement, which would save you some time during a divorce. However, there are limitations to what a prenuptial agreement is allowed to do in Illinois. If you create an agreement that breaks the state’s rules, then your agreement will be invalid once it comes time to use it. Here are three things you cannot do in a prenuptial agreement:

  1. Settle on Parental Responsibilities and Child Support: A prenuptial agreement cannot decide how you will allocate parental responsibilities or divide child support. The parenting plan in a divorce must serve the best interests of the children. You cannot know in advance what division of parenting time will be best for the children, especially if they are not even born yet. Illinois calculates child support using a formula based on both parents’ incomes. You cannot decide that one parent would pay less child support than what they are legally obligated to pay.
  2. Create Unjust Financial Terms: As an equitable division state, Illinois does not require divorcees to divide their marital properties exactly evenly. This gives you some flexibility in your prenuptial agreement if you want to protect assets from going to your spouse. However, the financial result of the agreement must be fair and equitable to both sides. A divorce court would not uphold a prenuptial agreement that unjustly divides marital properties to the point that one side seems to be taking advantage of the other. This extends to spousal maintenance. You can waive your claim to maintenance in the agreement, but a court will not enforce it if it would cause you unreasonable hardship.
  3. Incentivize Divorce: Many courts will reject a prenuptial agreement that seems to give a financial incentive for the parties to divorce. Basically, the courts do not want a prenuptial agreement to encourage people to divorce. Knowing that you would receive a financial windfall from your agreement could influence your decision on whether to divorce. It will be up to the court to judge whether your agreement violates this principle.

Contact a Kane County Family Law Attorney

You cannot predict the many ways that your financial circumstances could change during your marriage, which could affect how you view your prenuptial agreement. However, including conditions that violate Illinois law is certain to make the agreement invalid. A St. Charles, Illinois, family law lawyer at Goostree Law Group will make sure that your prenuptial agreement is fair and complies with the law. Schedule a free consultation by calling 630-584-4800.

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Is It Time to Update Your Prenuptial Agreement?A prenuptial agreement is a useful document to have in the unfortunate event that you ever decide to divorce. With all of the turmoil in a divorce, it can be a relief to have some of the negotiation work already complete. However, a prenup should not be a static agreement that you do not examine unless a divorce occurs. Your financial means and needs have changed since your marriage began. At worst, you may discover that your agreement is obsolete once it comes time to use it. You should periodically check your prenuptial agreement during your marriage and update it if necessary.

Division of Property

A prenuptial agreement can list which items will be included in your division of marital property and who will receive them. Many of the properties listed in your original prenuptial agreement are nonmarital properties because you owned them before your marriage. When modifying your agreement you can:

  • Add major properties that you have accumulated since the start of your marriage;
  • Remove properties that you no longer own; and
  • Update the value of the properties that were already in the agreement.

For instance, it is common for a spouse’s business to increase in value since the time when they created the agreement. The division of property in the agreement may now be unbalanced because of that change in value. The spouses can renegotiate whether they will share ownership of the business if they divorce or agree to give the other spouse more properties as compensation.

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