Do I need a prenup before I get married?
No one gets married with the intention of getting divorced, but it is always a good idea to protect your rights and your property in the event that life does not goes as planned, regardless of your financial circumstances.
Divorce is inevitably complicated, contentious, and unpredictable. In Illinois, the law requires the “equitable distribution” of property in a divorce, which means that the court will consider a number factors and divide the property based on what it thinks is fair and reasonable. This approach can lead to significant uncertainty for the parties involved in a divorce. A strong prenuptial agreement, also sometimes referred to as an antenuptial agreement, a premarital agreement, or a “prenup”, can head off some of that uncertainty by agreeing in advance about how your assets and liabilities should ultimately be divided.
What should I include in my prenup?
The Illinois Uniform Premarital Agreement Act, 750 ILCS 10, governs what prenups can and cannot include. The following issues are fair game and are commonly addressed in prenups:
- Deciding what property is “separate property” (i.e., property that belongs to only one spouse, and will be distributed to only that spouse in the event of a divorce)
- Deciding what property is “marital property” (i.e., property that belongs to both spouses, and must be divided between the two in the event of a divorce)
- Deciding how separate and marital property can be used during the marriage (e.g., sold, leased, mortgaged, invested, etc.)
- Deciding who has the right to live in the marital residence in the event of a divorce, or deciding on the procedures to sell the marital residence
- Deciding whether either spouse will owe spousal support (aka “alimony”), and if so, how much they will owe
- Deciding who will take custody of any shared pets
- Deciding whether the spouse will have rights to any death benefits from a life insurance policy
Because prenups are a contract between two consenting parties, they are broadly upheld and enforced as long as the contents do not violate public policy or criminal laws. That being said, provisions in prenups that discuss child custody and child support are often disregarded by the courts, which have a duty to protect the best interests of a child regardless of what his or her parents may have agreed to in a prenup.
What do I need to create a valid prenup in Illinois?
In Illinois, prenuptial agreements must be in writing; oral agreements are not enforced in court. Once a strong prenup has been drafted, both parties must have ample time to review and understand the contract. It is helpful if both parties are represented by attorneys that can assist in understanding the document and negotiating any changes. However, while each party must be given the opportunity to seek legal counsel if he or she wishes, there is no requirement in Illinois that both parties be represented by a lawyer.
Once the prenup is finalized, it must be signed by both parties, and it becomes effective on the date the parties are legally married. Beyond that, there are very few formalities to observe. Prenuptial agreements do not need to be notarized, and they do not need to be signed in front of witnesses. However, the presence of witnesses at signing may prove useful down the road if either party later claims that he or she was coerced to sign the prenup, or that her or she signed the prenup under duress.
While Illinois prenups have very few formal requirements, they are still contracts with significant, life-altering consequences. It is a good idea to consult with an experienced attorney to either draft or review the contract for you. If you are looking for assistance with drafting a prenuptial agreement that meets your needs and protects your rights both now and in the future, contact our law office and schedule a consultation.