How Do Prenuptial Agreements Work in Illinois?

What's in a Prenup?

A prenuptial agreement typically includes the following:

• Determines whether spousal maintenance (alimony) will be paid and the duration of the payments
• Make an arrangement for a will or trust in the event that one or both parties pass away
• The ability of the surviving spouse to amend property rights (ex. distribute property to children)
• Arrange how property is divided in the event of a divorce

Is a Prenup Right For You?

After the passage of the Uniform Premarital Agreement Act,^[1] most states recognize valid prenuptial agreements. This means that even though different states divide property differently, they will generally respect a prenup that is equitable.

One of the reasons couples enter into a prenuptial agreement is to avoid assets being split down the middle regardless of where they came from. States that split marital assets evenly are called community property states.

Illinois, however, is not a community property state. This means that in the event of a divorce, property, and assets are divided equitably which often means that it is not a 50/50 split. But there are many other reasons why you might still consider a prenup including:

• Allow spouses to decide which premarital property is part of the marriage. If someone comes into a marriage with considerably more wealth or assets before the marriage, it allows them to lay out what is subject to division and what’s not in the event of a divorce.
• Separate a business from marital assets. Similarly, if one spouse owns their own business, a prenup would allow them to separate the business from the marriage.
• Changing pre-marital property into marital property. Typically, anything acquired before the marriage is considered pre-marital property not subject to property division in divorce. A prenuptial agreement can also assign individual property as marital property subject to division.
• Preserving property from another marriage. If someone has been married before, they may want to protect property from a previous marriage, often for the sake of their kids.
• Reducing time and money of a potential divorce. For couples who have been married before, a prenuptial agreement may be a way to reduce the time, money, and emotional stress in case the marriage doesn’t work out.

As you can see, there are many potential reasons why people might want to enter into a prenuptial agreement. However, when making a prenup both people should involve their own lawyers. Also, a prenuptial agreement should never be entered without the full consent of both parties.

Prenups are business, not personal

A prenuptial agreement should be viewed as a business contract, not personal. The goal is to come to a fair division of property in case the marriage doesn’t work out. A prenuptial agreement should not lay out anything in regards to how either couple should behave during the marriage.

If a prenuptial agreement is created on false pretenses or entered into against someone’s will, the courts have the right to throw them out entirely. But a judge will assume it is an equitable agreement unless proved otherwise.