Premarital or “Prenuptial” Agreement Enforcement in Illinois Divorce Cases

 Posted on October 19, 2012 in Divorce

Premarital agreements are also called prenuptial agreements (“prenups”) and sometimes called antenuptial agreements. The terms are the same. A premarital agreement is a written contract created by two people planning to be married. The agreement typically lists all of the property each person owns, as well as their debts, and states what each person's property rights will be after they marry both in the event of divorce or death. Under the Illinois Uniform Premarital Agreement Act, a prenuptial agreement must be in writing. A prenuptial agreement is also enforceable without consideration, meaning there does not necessarily have to be a mutual exchange of benefits or detriments for the agreement to be enforceable. A premarital agreement takes effect once the marriage is formalized. Once the marriage has occurred, the agreement can only be modified or revoked in writing with the consent of both parties. In a premarital agreement in Illinois, spouses can cover just about any subject matter that is not criminal, does not adversely affect public policy and is not detrimental to their children's right to support. The specific subject matters authorized by Illinois include rights and obligations regarding any and all property acquired by either spouse at any time; disposition of such property upon separation, divorce, death or any other event; and wills, trusts and the choice of law used to construe the agreement. A premarital agreement is not enforceable in Illinois if it was not executed voluntarily or was unconscionable at the time of execution and the disadvantaged party did not have adequate and reasonable knowledge of the other party's property and obligations, did receive a reasonable disclosure of the party's property and obligations and did not waive the right to receive such disclosure. Unconscionability is gross unfairness of terms coupled with lack of a meaningful alternative. A provision modifying or eliminating spousal support that causes undue burden because of circumstances unforeseeable at the time of the execution of the agreement is not enforceable. If you are planning to marry and feel a premarital agreement may be in your best interest, make sure you have a skilled attorney on your side. Our Illinois divorce attorneys can provide you with legal help with compassion and years of experience. Contact our dedicated divorce and family law attorneys today.