Discussing prenups may be hard for many Illinoisans, but often necessary

Although it may be difficult, and sometimes awkward, to breach the subject of a prenuptial agreement before an impending wedding, it is often an essential discussion if an individual wishes to ensure his or her assets are protected should the marriage tragically end in divorce.

Simply put, all property acquired during an Illinois marriage is typically considered marital property, and thus subject to division in the event of divorce. However, a well-drafted prenuptial agreement - also known as a premarital agreement - can preemptively define what property will be considered marital, or alternatively, separate. Additionally, premarital agreements in Illinois can dictate how property will be divided during divorce, not to mention they can even outline the modification or elimination of spousal support.

Prenuptial agreements can be significantly helpful to those who have spent many years building a successful business or to those who have been married more than once and want to protect their assets for the benefit of children from a prior marriage. However, these agreements are not worth the paper they are written on if they are found to be invalid by an Illinois court, which is why it is important to know the law regarding these types of marital contracts.

Illinois law pertaining to premarital agreements

In Illinois, all prenuptial agreements executed on or after January 1, 1990, are governed by the state's Uniform Premarital Agreement Act. This particular Act delineates the various requirements that need to be satisfied in order for a prenuptial agreement to be enforceable. For instance, some of the more common, and obvious, prerequisites contained within the Act dictate that a prenuptial agreement must be in writing and signed by both spouses.

Importantly, the Act also clearly states that a prenup is not enforceable if the spouse challenging the agreement can prove either of the following circumstances:

  • He or she did not voluntarily execute the agreement; or
  • When executed, the agreement was "unconscionable," and before the agreement's execution, the challenging spouse what not given a sufficient disclosure of the other spouse's property, did not waive the right to such a disclosure in writing and did not have adequate knowledge of the other spouse's property

Interestingly, the Illinois Uniform Premarital Agreement Act omits the previous common-law condition that prenuptial agreements must also be "fair and reasonable" in order to be valid. While this requirement still applies to agreements entered into before 1990, current Illinois law does not allow a prenuptial agreement to be invalidated simply because its enforcement will result in a disproportionate distribution of assets.

As this article demonstrates, there are many complexities and issues to keep in mind when executing a prenuptial agreement in Illinois. However, the information contained herein is barely able to scratch the surface of what an individual needs to know when drafting a prenup. Consequently, it is often best to contact an experienced premarital agreement attorney if you are planning to get married and want to protect your assets. A skilled attorney can help explain your options and assist in drafting any documentation you may need.