Creating Effective Prenuptial Agreements

Generally speaking, a prenuptial agreement (also known as a "premarital agreement" or a "prenup") is a written contract entered into between two parties prior to their marriage that addresses one or more issues that may arise in the event of divorce, such as: characterization of property acquired before or after the marriage, division of property, division of debt and spousal support (also known as "maintenance" or "alimony").

With a prenuptial agreement, couples can determine what their rights will be in the property owned and acquired by either of them before and after the marriage as well as the obligation that either one may have to support the other in the event of divorce. In Illinois, subject to certain exceptions, property acquired by either spouse after the marriage is considered to be "marital" property, which is subject to division between the parties in the event of divorce. Prenuptial agreements are most often used to define between the parties what they will consider to be "marital" property or "nonmarital" (i.e., separate, individual) property during the marriage and upon divorce, regardless of how Illinois law would define these matters. Parties can include in prenuptial agreements not only what property will be considered marital property, but also exactly how that property will be divided between the parties upon divorce. Debt incurred before and after the marriage can also be addressed in the same way in a prenuptial agreement. Further, parties can address spousal support matters in a prenuptial agreement and can provide for how much, if any, spousal support either spouse would receive from the other upon divorce.

Prenuptial agreements are flexible enough to address many issues that would otherwise be determined by a judge at the time of divorce. Nearly any subject, with the exception of child custody and support, matters that are contrary to public policy or that are criminal in nature, may be addressed in a prenuptial agreement. This is why many people and practitioners consider prenuptial agreements to be useful planning tools.

What Is The Difference Between A Prenuptial Agreement And A Postnuptial Agreement?

As the "pre" and "post" indicate, prenuptial agreements are drafted and executed prior to the marriage and postnuptial agreements are drafted and executed after the marriage. Generally, prenuptial and postnuptial agreements may cover the same issues and subject matter; however, the enforceability of some issues addressed in postnuptial agreements – particularly spousal support rights – may not be as certain as with prenuptial agreements.

Do I Need A Prenuptial Agreement?

Prenuptial agreements are very useful for people entering a second (or more) marriage as a means to protect their assets and income and to ensure that their assets pass to their children from their prior marriage(s). However, as many people now wait longer to marry and tend to accumulate more assets prior to marriage, prenuptial agreements are useful for just about anyone who wants to protect and preserve his or her income and assets. Prenuptial agreements are like any other estate planning tool and, when drafted properly, can take the uncertainty out of how income, assets and debts will be dealt with during the marriage and in the event of divorce.

How Do I Talk To My Fiancé/Fiancée About A Prenuptial Agreement?

Talking to your fiancé or fiancée about a prenuptial agreement during the wedding preparation can be uncomfortable and stressful. No one wants to put a damper on the fun and excitement of planning for a wedding by bringing up divorce. Oftentimes, a party may feel that their significant other is trying to avoid the "partnership" of marriage and doesn't want to share his or her assets with them. The stress and tension can be avoided, first, by starting the discussion of whether or not to have a prenuptial agreement as early as possible in the marriage planning process and, second, by being very honest with your partner as to your reasons for wanting a prenuptial agreement. Whether it is your desire to make sure that your children from a prior marriage receive the bulk of your estate, or you want to preserve assets or inheritance that you may receive during the marriage, or you want to continue to handle your income and investments as you determine during the marriage, it is best to talk to your spouse-to-be about these matters as openly and honestly as possible and to do so with plenty of time before the wedding to allow for a very thorough, open discussion. Share your thoughts and desires with your partner and encourage him or her to think about what he or she would like to address and plan for during the marriage as well as his or her own goals and objectives relative to property, income, debt and support matters during the marriage.

Do I Need A Lawyer For A Prenuptial Agreement?

No. Illinois law does not require that either or both parties have legal representation in the drafting and negotiation of a prenuptial agreement. However, given the significance and nuance of these agreements, it is always best that both parties be represented by competent legal counsel. If it is important to you and/or your spouse to have a prenuptial agreement to protect and preserve your assets or simply to decide how you will deal with these issues in the event of divorce, then both of you should seriously consider having an experienced professional draft and review your prenuptial agreement in order to explain your rights and obligations and to ensure that the agreement you end up with meets your goals and objectives.

Contact Us Today

Learn more about your options by contacting Rinella and Rinella, Ltd., online or by calling 312-236-5454. Our Chicago attorneys welcome the opportunity to provide the counsel you need.