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.

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.

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Frequently Asked Questions

What are the pros and cons of a prenuptial agreement?

The pros and cons of a prenup depend on who you are. Prenups keep property between spouses separate. That means they favor the person coming in with the property. As the one with property, a prenup gives you confidence that the other party isn’t marrying you for your money.
One of the biggest cons is that a lot of people are upset that the other party wants a prenup. Many people see it as unromantic or untrusting of the other marriage. Rather than a means of protection, they can see it as a lack of commitment.

What do you put in a prenuptial agreement?

Just about anything regarding property can go into a prenup. A lot of people use prenups to protect businesses or family assets. But prenups can protect things like retirement accounts, houses, and more. A prenuptial agreement becomes important when a marriage ends, and parties need to split up the assets.

Are prenuptial agreements enforceable in Illinois?

Prenups are usually enforceable in Illinois, but not always. A prenup is not enforceable if:

  • The prenup was not signed willingly,
  • The prenup was drastically unfair, or
  • The prenup eliminated or outlawed maintenance.

Can I do my own prenuptial agreement?

You do not need an attorney to create or read the prenup before parties agree to it. However, the prenup is much more enforceable if both parties have their own attorney during the prenup process.
Each party having their own attorney demonstrates that they understand the prenup and that they were able to advocate for their needs. Neither party can be forced to sign the prenup, which also means they cannot be threatened into signing it.

Should I be offended by a prenup?

Prenups are not meant to be offensive. Rather, they are a show that the person wants to protect their assets. They may want to protect them for their own future or for their family’s future. It can be hurtful for someone to ask for one, but they are looking to plan for their future.
One option is to add a sunset clause to a prenup. This would be a clause of a prenup that said after some amount of time, if the couple is still married, the prenup is voided.

Can a prenup be signed after marriage?

A prenup cannot be signed after a marriage. But there are things called postnuptial agreements which are just like prenups except they are created after the marriage.