What Should I Know About an Illinois Prenuptial Agreement?

 Posted on November 11, 2020 in Prenuptial Agreements

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. 

How to Set Aside an Unenforceable Prenup

The UPAA, as ratified in Illinois, explicitly sets out what two parties may and may not include in a valid prenuptial agreement, as well as the procedure for making changes to the agreement—namely, by written consent of both parties. Sometimes, however, one or both spouses may seek to set the prenup aside, arguing that it is unenforceable. 

In order to do so, the party seeking to set aside the agreement must be able to prove at least one of several things:

• The prenup was not entered into knowingly and voluntarily.

• One party was not sufficiently informed of the other party’s finances, due either to oversight or malicious intent.

• The agreement was unconscionable, meaning unreasonable or excessive, when it was signed.

Another possible way for a prenup to be set aside is for one or both parties to prove that the document was executed so poorly that it never should have been signed. This is somewhat less common than proving unconscionability, but it does happen. If this is the case for you, a court will generally deem the document unenforceable.

Contact a Kane County Family Lawyer

If you need legal guidance in creating your prenuptial agreement, a competent family law attorney can make all the difference. The experienced St. Charles prenuptial agreement attorneys at Goostree Law Group will work with you and your spouse to come to an agreement that suits both of you and that can minimize future disagreements and confusion. Call 630-584-4800 today to schedule a free consultation.

Source:

https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59