During a divorce, the court will ultimately resolve any property disputes in accordance with Illinois law. While most people would not like to think about this scenario before they are even married, in certain situations a person may not want to leave the fate of their property in the hands of the court if a divorce were to arise. If you would like to eliminate this uncertainty, you and your future spouse are free to agree to your respective property rights prior to being married. Under Illinois law, a “prenup”, or prenuptial agreement, is called a “premarital agreement”. Premarital agreements are governed by the Illinois Uniform Premarital Agreement Act (“The Act”).
A premarital agreement is a contract and it becomes effective upon marriage. Just some of the issues that might be addressed by a premarital agreement include: property rights in existing or future property in the event of separation, divorce or the death of either party; the right to buy, sell, or control property; the modification or elimination of maintenance/alimony; the making of a will or trust necessary to carry out the other provisions of the premarital agreement; and generally any other matter as long as it is not a violation of public policy or a crime.
One area in which the effect of premarital agreement is limited is in regard to child custody and child support. The Uniform Premarital Agreement Act states that a premarital agreement may not adversely affect the right of a child to support. The court also will not be bound by premarital agreements where they involve child custody.
While a premarital agreement takes effect at the time of marriage, it will not be valid if it was entered involuntarily. So, if the agreement was the result of coercion or, fraud, it will be unenforceable. One of the chiefs ways the validity of a premarital agreement can challenged is the failure of a party to fully disclose the extent of their property prior to entering the agreement. Therefore it is critical both parties are forthright about their property, income and liabilities prior to entering into a premarital agreement.
If you are considering a premarital agreement, or have been asked to sign one, we would be happy to address any concerns you may have. Our firm’s experience with family owned businesses, corporate law, bankruptcy, real estate, and commercial law gives us a unique perspective on the issues that you may want to address in a premarital agreement.