Many 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. 

Coming to a premarital agreement, commonly known as a prenuptial agreement, with your spouse can be a financially savvy move in case of divorce. It allows you to define several monetary and proprietary aspects of your marriage, including:

• The rights to and division of marital property.
• What is considered marital property.
• The terms of spousal support payments.
• How much marital money can be used to pay off individual debt.
• The distribution of benefits from a life insurance policy or will.

The rules of prenuptial agreements in Illinois are outlined in the Illinois Uniform Premarital Agreement Act. Among the rules are several ways that a prenuptial agreement can become invalid. These safeguards are meant to protect a spouse in case of unfair practices by the other spouse.

Write It Down

There has long been a stigma surrounding prenuptial agreements. Chances are, you have at some point interacted with someone who decided to pursue a prenup as a part of their marriage plan, or who at least considered one prior to their decision to tie the knot. Whatever your perception of the concept, the reality is that prenuptial agreements - as controversial as they may be - can be useful, efficient tools for couples. This is particularly true for those who have a lot at stake individually, in terms of assets and cherished belongings.

The Purpose Behind the Agreement

Prenuptial agreements are about much more than simply determining who gets what should the marriage ever come to an end. They are about ensuring each party is financially sound and able to care for themselves in the event the marriage ends, once income and money management circumstances have changed. They also serve to establish a foundation of honest, open communication between a couple early on in the union.