Individuals who are planning on marrying may be interested in forming a premarital agreement. This type of agreement defines the rights and responsibilities of each party during a relationship, as well as what happen in the event the relationship ends. Premarital agreements are also referred to as prenuptial agreements.
Forming an Agreement
Pursuant to Illinois law, a premarital agreement is an agreement made between individuals who intend to marry each other. The agreement becomes effective once the marriage actually occurs. In order to be enforceable, the agreement must be in writing, signed by both parties, and entered into voluntarily.
While most agreements require consideration to be exchanged between the contracting parties, premarital agreements do not require consideration in order to be enforceable. Individuals can agree (or contract) to the following in their premarital agreement:
- The rights and obligations of the couple in regards to any property—whenever it was acquired—they own either separately or together;
- How property will be divided in the event of separation, divorce, or if one of the spouses dies;
- The modification or complete elimination of the right to spousal support; and
- Any other matter, as long as it does not violate public policy or a law that carries with it a criminal penalty.
It is important to note that despite the validity of a premarital agreement, spousal support may still be ordered by the court if it is necessary to to avoid an undue hardship. The court can do this if there are circumstances that were unforeseeable at the time the agreement was executed. Additionally, while premarital agreements can address many things, they cannot be used in a way that negatively impacts the rights of a child to support.
After the marriage occurs, a premarital agreement can only be altered or revoked by a written agreement that is signed by both parties. Additionally, a premarital agreement will not be enforced if the party seeking to avoid enforcement proves that he or she did not enter into the agreement voluntarily or that it was unconscionable when it was made effective.
If the marriage is found to be void, the agreement will only be enforced to the extent required to avoid an inequitable (unfair) result. Marriages can be declared void for the following reasons:
- A party lacked the capacity to consent to the marriage;
- A party lacked the physical ability to consummate the marriage and the other party was not aware of this inability at the time they became married;
- A party was 16 or 17 years of age at the time of the marriage and did not have his or her parent's consent or court approval; or
- The marriage is prohibited by law.
Help with Family Law Issues
Many individuals do not like the idea of having a premarital agreement because they expressly define each person's rights and put in place a plan for the event that the relationship ends. However, premarital agreements can be very beneficial when structured correctly. If you would like more information related to premarital agreements, please contact an experienced Illinois family law attorney. To schedule your consultation, call MKFM Law today at 630-665-7300.