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Will a Prenuptial Agreement Always Be Followed in an Illinois Divorce?

 Posted on June 09, 2023 in Family Law

Elmhurst Divorce AttorneyLegally dissolving a marriage will involve multiple complex issues that will need to be addressed. When a couple decides to get a divorce, they may encounter disputes over many of these issues, and each spouse may struggle to address financial concerns and make sure they will be able to support themselves in the future. To help minimize these issues and protect the rights and interests of both parties, many couples will choose to enter into prenuptial agreements. However, while these agreements can offer some reassurance for spouses, they may be seen as unfair in some situations. Couples will need to understand when a prenuptial agreement will apply in the event of divorce and when it could potentially be challenged.

To ensure that issues related to prenuptial agreements will be handled correctly, a person who is planning to sign an agreement or get a divorce can work with an experienced family law attorney. At Weiss-Kunz & Oliver, LLC, we provide legal help and representation for those who need to address these issues. We can provide guidance when drafting and executing a prenuptial agreement, ensuring that a person understands the best ways to protect themselves and avoid uncertainty in a potential future divorce. We can also provide representation during the divorce process and determine how the terms of a prenuptial agreement will affect the outcome of the case. If necessary, we can take steps to challenge an unfair or unlawful prenuptial agreement or enforce the terms of an agreement that a couple had signed. Regardless of the circumstances of a case, we will advocate for our client's interests and help them determine the best approach to take to achieve success.

Understanding Prenuptial Agreements in Illinois

A prenuptial agreement, which is often referred to as a "prenup," is a contract that a couple may sign before they get married to determine how certain issues will be handled in the event of a divorce. These agreements can be helpful for protecting assets and managing expectations in a marriage. They can also help reduce uncertainty and minimize conflict during the divorce process.

Prenups will generally address financial issues related to the property owned by a couple or income earned by both spouses. While a prenup may determine how financial decisions will be made during a divorce, it can also specify how a couple will manage or control different types of property during their marriage.

A prenup can include provisions detailing each party's rights and responsibilities in matters related to buying, selling, transferring, exchanging, leasing, managing, using, or disposing of different types of property owned by the couple. It can also address issues related to wills, trusts, or other estate planning documents that may be used to carry out the terms of the agreement, and it can include provisions regarding life insurance policies for both parties. This can not only make sure divorce-related issues will be handled a certain way, but it can also address how certain matters will be handled upon the death of a spouse, and it can make provisions to protect the inheritance rights of either party's children.

While prenuptial agreements may include a variety of terms, they will often be focused on how certain matters will be decided if the couple's marriage ends. Specifically, they may include provisions addressing issues such as:

  • Property division - One of the most common reasons couples choose to create a prenup is to outline how different marital assets will be divided in the event of a divorce. A prenuptial agreement can specify which assets are considered marital property and which are separate property, and it can also include details about how marital property will be divided between the spouses. By identifying certain assets as separate property, an agreement can provide spouses with financial protection, ensuring that they will be able to retain ownership of property they possessed before getting married or other assets that will allow them to meet their financial needs after the end of the marriage. Terms stating how various marital assets will be divided can help spouses avoid disputes during the divorce process while also providing each party with the resources they will need to support themselves in the future.

  • Debts and liabilities - Prenuptial agreements can also address debts and make decisions about which spouse will be responsible for different types of liabilities. This can ensure that if one spouse enters the marriage with significant debts, the other spouse will not become financially responsible for repaying the amounts owed. It can also make sure the parties understand their obligations regarding any debts they accrue during their marriage. This can help spouses protect their financial interests and ensure they understand how their credit may be affected in the event of a divorce.

  • Business interests - A person who owns a business may want to make sure they can retain ownership of the business if they get divorced in the future. With a prenup, a business owner can make sure terms are included that will help prevent any disputes over business ownership. For example, a prenup may state that a business is separate property that will not be subject to division during divorce. A prenup could also detail how ownership of businesses founded during a couple's marriage will be addressed, such as by requiring a couple to divide business assets equally, giving sole ownership to one spouse, or stating that a business will be sold in the event of divorce. A prenuptial agreement can be a crucial way to protect family businesses or professional practices and ensure that they can continue operating whether a couple remains married or chooses to end their marriage at a future date.

  • Spousal support - Spousal maintenance, also known as alimony, is an issue that can result in contentious disputes during the divorce process. One spouse may believe that they require support to maintain their lifestyle, while the other spouse may not want to make ongoing payments. To avoid conflict in this area, spousal support can be addressed in a prenup. An agreement may decide whether alimony will or will not be paid, and it can also provide details about how much one spouse will pay to the other and how long these payments will last after a divorce. A couple may also agree on other terms related to spousal support, such as stating that a person will not receive support if they commit infidelity during the couple's marriage. By understanding how these issues will be handled before divorce ever enters the picture, spouses can not only avoid disputes, but they can make sure they will be prepared to address financial issues after a divorce.

While prenups are generally limited to addressing financial concerns, they may include other provisions as well, including terms that specify the "choice of law" governing the agreement. These terms will determine whether Illinois law or the laws of another state will be followed during the divorce process or any proceedings related to the enforcement of a prenuptial agreement.

One issue that a prenup cannot address is child custody. Decisions about the allocation of parental responsibility and parenting time are based on what is in the best interests of a couple's children. These matters will be settled at the time of a divorce or separation after considering the facts and circumstances of the case.

What Issues Affect the Validity of a Prenup?

Since a prenuptial agreement serves as a legal contract between spouses, the terms of a prenup will generally be followed, as long as they are legally valid. However, there may be a few issues that could affect the enforceability of a prenup, including:

  • Involuntary execution - A prenup will only be valid if both parties signed the agreement voluntarily. In some cases, a spouse may contest a prenup by claiming that they signed the agreement due to coercion or duress. They may state that they were threatened with physical or financial harm by the other spouse or that unfair tactics were used to coerce them into agreeing to a prenup that was not in their best interests. When determining whether a prenup was signed voluntarily, courts may look at whether a person was given enough time to properly consider an agreement and consult with an attorney to make sure they fully understood what they were signing. For example, if a person presented their partner with a prenup on the day of their wedding and stated that they would not go through with the ceremony unless the agreement was signed, this is likely to be considered coercion. An agreement may also be found to be invalid if one of the parties was legally incompetent or did not have the mental capacity to fully understand what they were signing.

  • Unconscionability - An unconscionable prenuptial agreement is one that is very unfair and one-sided. Illinois does sometimes allow for a prenup to be unenforceable if it is so one-sided that it creates an unfair advantage for one spouse, such as by stating that one spouse will receive the vast majority of the couple's assets in the event of a divorce. However, a prenup can only be invalidated on the grounds of unconscionability if one party was not provided with a reasonable disclosure of the other party's financial situation, including their assets and their financial obligations. If a person waived their right to receive a financial disclosure, or if they reasonably should have had adequate knowledge of the other party's assets and liabilities, they will not be able to contest a prenup by claiming that it is unconscionable.

  • Provisions for spousal maintenance - Terms of a prenuptial agreement that waive a spouse's right to receive spousal support may be deemed unenforceable in certain situations. If the modification or elimination of alimony would cause undue hardship for a spouse because of circumstances that neither party could have reasonably foreseen at the time they signed a prenup, a court may choose to ignore these terms and award spousal support. For example, if a prenup stated that spousal support would not be paid, but one spouse was seriously injured during the couple's marriage and experienced a permanent disability that made it impossible to work and support themselves, the other spouse may be required to provide support to ensure that the disabled spouse will be able to meet their ongoing needs following a divorce.

To ensure that the terms of a prenup will be fair and will meet the needs of both spouses, it is important for each spouse to consult with an independent attorney. This can ensure that they fully understand what they are signing, are aware of how they will be affected by the terms of the agreement, and can negotiate favorable terms that will protect them in the event of a divorce. It is also a good idea for spouses to revisit their agreement periodically during their marriage to determine whether updates or changes need to be made based on their current circumstances. This can make sure they will continue to be protected by the terms of their agreement, and it can help minimize potential conflict if they choose to get a divorce in the future.

Contact Our DuPage County Prenup Lawyers

Having a prenuptial agreement in place is a prudent step for many couples. However, it is essential to ensure that both parties fully understand how their prenup will protect them and the role that it may play in a potential divorce. At Weiss-Kunz & Oliver, LLC, our Elmhurst prenuptial agreement attorneys can provide guidance for spouses who are considering these types of agreements, and we can ensure that a prenup will be valid and legally enforceable. We can also ensure that the terms of a prenup will be followed correctly during the divorce process. To learn more about how we can assist with prenuptial agreements, postnuptial agreements, or other issues related to divorce and family law, contact us at 312-605-4041.





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