How Do Prenuptial Agreements Work in Illinois?

A prenuptial agreement is a document made by a couple before they’re married that lays out how their property and assets will be handled if the marriage ends. There are many reasons why someone might want one. It does not necessarily mean that they think the marriage will fail.

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.

Frequently Asked Questions

Are Prenuptial Agreements Valid in Illinois?

Illinois is an equitable distribution state, meaning that marital property is divided fairly, not straight down the middle. Any prenuptial agreements are one of the many factors taken into account while dividing property in an Illinois divorce case.

Given the agreement is signed, was entered into on good faith, and is deemed to be fair – a judge is probably going to enforce it. On the other hand, if it’s found that the agreement was based on false or incomplete information, was entered unwillingly, or is unfairly lopsided it may be changed or thrown out altogether.

In Illinois, a prenuptial agreement is only considered one aspect to consider, not the final word.

How long is a prenuptial agreement valid in Illinois?

A prenuptial agreement is good for the duration of the marriage unless it includes a clause that states otherwise. As long as the terms of the prenuptial agreement are considered fair and valid by the court at the time it was signed, then it will be considered a valid reflection of the couple’s wishes.

While a prenuptial agreement can be changed by a judge, it’s important to remember that if you entered into it willingly, it will be taken seriously by the court. If you have any doubts about a prenuptial agreement, consult a lawyer before signing. In fact, even if you fully agree with your spouse, it’s wise to have your own lawyer present to ensure nothing is missed.

Are prenuptial agreements final?

Prenuptial agreements are taken seriously by the courts but are not considered the final word. Many couples find that out the hard way. If an agreement is found to be inequitable, or the financial disclosure on which it was founded is invalid, the whole agreement can be thrown out.

Judges will generally follow an equitable prenuptial agreement as closely as possible. If you no longer feel your prenuptial agreement is fair at the time of a divorce, you can try to argue it. But it’s important to remember that as long as you entered into it willingly and were not deceived in any way, a judge is likely to stick with what you arranged. Illinois family court will assume a prenuptial agreement is valid unless it is proven otherwise.

Does a prenuptial agreement mean no alimony?

Many prenuptial agreements define how spousal maintenance (alimony) is to be handled in a divorce. The court will assume the terms are equitable, but it can be contested. If the court agrees that the terms of the prenup surrounding alimony aren’t fair, they may change it.

Can a judge disregard a prenuptial agreement?

Yes. A prenuptial agreement is a legal contract, so anything not allowed in the law would be thrown out. Further, if the agreement is determined to be unreasonably unfair, was entered into without full financial disclosure or consent – it could be thrown out entirely.

A judge will generally try to follow a valid and fair prenuptial agreement. But there is ample legal precedent for a judge to disregard part or all of a prenuptial agreement.

To ensure a prenuptial agreement is followed in a divorce, consult an attorney to make sure it follows the rules of equitable property division.

Do both parties need a lawyer for a prenup?

Technically, no. But both parties should always have their own lawyer review a prenuptial agreement, even if they completely agree on all aspects of it.

Usually, one person’s lawyer will draft the agreement and have the other person’s lawyer review. This ensures that the agreement is enforceable and minimizes issues that could arise during a divorce.

When is a prenuptial agreement seen as one-sided?

When drafting a prenuptial agreement, both sides should always have their own attorney. This is the first and most important step to make sure a prenuptial agreement is enforceable and fair.

Generally speaking, a court will only see a prenuptial agreement as invalid or one-sided if it can be proven it was unfair at the time it was signed. For instance, if one spouse didn’t fully disclose their assets and debts, or was forced into an unreasonably lopsided agreement.

That said, if the agreement was entered with full disclosure, was deemed fair at the time it was signed, then it will be enforced.

When do Illinois courts consider a prenuptial agreement unfair?

An Illinois prenuptial agreement is considered to be fair as long as it was seen that way at the time it was signed, not at the time of the divorce. If it was entered into under duress, or under false pretenses, it would also be considered unfair.

In other words, the important time to consider the fairness of a prenuptial agreement is when it’s being signed, not years later. Always consult an experienced attorney before entering into a prenuptial agreement.

When creating a prenuptial agreement, do I need to present financial records?

Yes. Prenuptial agreements are made with the assumption that the other side is fully aware of your financial records. If it is shown that information was withheld, or a prenuptial agreement was entered in bad faith, then it might be thrown out altogether.

Are prenuptial agreements ever void?

Given the agreement is written and signed, was entered into with full disclosure by both parties, and was conscionable at the time it was signed, it will be enforced.

If one spouse concealed any property or debts, or didn’t fully disclose them at the time of signing, it might be seen as invalid. Similarly, if a prenuptial agreement is coerced then it would be considered invalid.

Can I avoid following a previously signed prenuptial agreement?

It’s important to note a prenuptial agreement can be modified at any time as long as the changes are in writing and signed by both spouses. However, if you weren’t forced into the agreement, and it was made with full disclosure in good fate, then you will be bound to its terms.

Sometimes a judge may choose to create small modifications to eliminate any undue hardship. But mostly, they will assume that the prenuptial agreement is a valid representation of your wishes.


References: [1]Uniform Premarital Agreement


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