Prenup Basics

 Posted on June 26, 2013 in Divorce

Putting aside the age-long question of the value of a premarital agreement, a.k.a. prenup, couples considering them must ensure that they meet the state minimum statutory requirements. Most couples hire a family law attorney to draft them professionally in order to avoid any potential issues. However, even with attorney help, here are a few things that couples should keep in mind. Unlike most contracts, prenups become effective once the marriage is official. Nothing of value needs to be exchanged, what contract lawyers refer to as consideration, is necessary in order for the contract to be valid. Second, prenups must be in writing and executed by both parties voluntarily. Generally, prenups set forth what is marital and non-marital property, and the method of distribution of said property in case of a divorce. Aside from property division, prenups can also cover spousal support, what laws would apply in case of a divorce and common issues that may arise. However, prenups may not adversely affect the right of a child to support. Another benefit of prenups is that couples may amend them after the marriage if circumstances change, provided that the same formalities are met (i.e., changes are in writing and signed by both parties). While a valuable planning tool, the history of prenups is rife with abuses, forcing the Illinois legislature to create certain defenses to enforcement. An otherwise valid prenup, is unenforceable if the party seeking to avoid it can show that it was not entered into voluntarily, its terms are one sided and there was inadequate disclosure of assets prior to its execution. This usually arises in the context where there is an uneven distribution of wealth. The wealthier spouse can afford to hire a family law attorney to draft the agreement for both spouses without the other spouse being represented by an attorney. In these cases, courts will be particularly suspicious of the motives of the party that had an attorney. Entering into a premarital agreement has long lasting consequences and each spouse should have an experienced family law attorney review the agreement prior to signing it. At Goostree Law Group, we have represented St. Charles clients with their family law needs, including premarital agreements.

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