A common myth is that premarital or prenuptial agreements are only for the rich and famous or those who have huge estates. In reality, a prenuptial agreement should be viewed in the same light as a life insurance policy. No one wants to have to use it, but if the need arises, they are glad it is in place.
Reasons to Get a Prenup
A newly engaged person may be hesitant to broach the subject of a prenup. The reluctance can be overcome by considering the preparation of a prenup as a stepping-stone to important conversations about how the couple plans to handle finances.
The collaborative process can be used for developing a prenuptial agreement. For example, a neutral financial professional can help guide the couple into making financial decisions for their future that are acceptable to both parties. The prenup is a way to protect the property of both parties, the rights and responsibilities of both parties, and can be viewed as marital estate planning.
Some specific reasons a couple may want a prenup are:
- To define what is separate and what is marital property.
- To provide for the marital estate in the same way a person would provide for their own estate.
- To protect the rights of children from another relationship.
The agreement should be prepared as far ahead of the actual marriage as possible. Six months is a good amount of time. Prenuptial agreements signed just before the marriage takes place are more likely to be invalidated if one party claims they signed it under duress.
Illinois Prenuptial Agreement Enforcement
To enforce a prenup, Illinois law requires:
- The agreement to be in writing and signed and dated by both parties.
- The agreement to have been voluntarily signed.
- The agreement may not be unconscionable, which means it must be fair, free of fraud, and finances must have been fully disclosed.
- Neither party withheld pertinent financial information.
- The right of a child to support cannot be “adversely affected” by a premarital agreement.
- If spousal support was waived in the agreement, but due to circumstances that could not have been foreseen at the time the agreement was entered into this creates an undue hardship, the court may order spousal support.
- Any agreement regarding custody (parental responsibilities) of child(ren) will be viewed by the court and only enforced if the court finds it to be in the best interests of the child(ren).
A prenup can be modified any time before or after the marriage. The modification must be in writing and signed and dated by both parties.
For more information about preparing a prenuptial agreement, contact us at Bruckner Hernandez Legal Solutions.