Premarital Agreements in Illinois
A discussion with your fiancé about the settlement of financial matters in the event of a divorce or death, through a premarital agreement, may not be romantic, but it can be a great idea. Some people choose to enter into premarital agreements in order to protect a wide range of property and assets. In other cases, if there are children from a previous relationship involved, the natural parent can request a premarital agreement to protect these children in case of the parent's death.
What is a Premarital Agreement?
Illinois law defines a premarital agreement as an agreement that is entered into by two people who expect to get married, and is effective only if the couple marries. Many people refer to premarital agreements as prenuptial agreements, or prenups.
In a prenup, the couple can agree on how to deal with the following matters in case of divorce, or death:
- The rights and responsibilities of each person with regards to any property they own individually or together;
- Each person's rights in the buying, selling, and control and management of any property owned; and
- How the property would be dealt with in the event of divorce or death, or other events.
- Modifying or ending spousal support or alimony;
- How estate planning through wills and trusts will affect the agreement;
- Who benefits from a life insurance policy; and
- Which state's law will be used when interpreting the agreement.
However, the law states explicitly that the couple cannot make any binding agreements upon a court when it comes to child support and custody.
Changing or Canceling a Premarital Agreement
In some cases, after the wedding, a couple may decide that they do not need the agreement anymore. In order to revoke a prenuptial agreement, the couple has to do so in writing. Tearing up the prenup won't work.
Additionally, a prenup may be unenforceable if the spouse challenging it can prove one of the following to the court:
- He or she did not enter into the agreement voluntarily;
- The agreement was unconscionable when made, and before the agreement was made, the challenging spouse:
- Was not given a fair and reasonable disclosure of the other spouse's property and assets;
- Did not voluntarily and expressly waive the right to have this disclosure; or
- Had no reasonable way to know the other spouse's financial situation.
- If the prenup deals with limiting or eliminating spousal support, he or she can prove it will cause him or her undue hardship, based upon facts that were not reasonably foreseeable at the time they entered into the agreement.
Contact a DuPage County Attorney
If you choose to use a prenup to protect your assets and property, you have to make sure that the agreement conforms to the requirements of Illinois law. Because the terms of a prenup can seriously affect your financial future, it is important to consult an attorney both when drafting and before signing a prenuptial agreement. If you are planning to get married and would like to have a prenuptial agreement in place before saying “I do,” contact the experienced DuPage County family law attorneys at Mirabella, Kincaid, Frederick & Mirabella, LLC for a consultation.