by Attorney Eric D. PuryearPremarital agreements (also known as prenuptuial or antenuptial agreements) are great for couples who want to figure out the distribution of their property prior to the filing of a divorce. A premarital agreement enables couples to come to a mutual understanding during the honeymoon phase of their relationship, and could help save money in a costly and lengthy divorce battle later on.
Illinois allows for couples to enter into these premarital agreements, and the enforceability of such agreements are governed by the Illinois Uniform Premarital Agreement Act. Premarital agreements are essentially contracts, although their requirements for enforceability in Illinois vary slightly than other contracts. Most importantly, there is no such thing as an oral premarital agreement. The agreement must be in writing and signed by both parties. Unlike other contracts, the agreement is also enforceable without consideration.
A Premarital Agreement in Illinois can help resolve many issues. This includes the distribution of property. Generally, all property and income acquired during the marriage is considered marital property. Absent a premarital agreement, all marital property is subject to division by the courts during a divorce. A premarital agreement is especially beneficial if one spouse owns and operates a business, or is a partner in a business, and they are concerned about the status of that business upon divorce.
Another issue commonly resolved in premarital agreements in Illinois is the modification or elimination of spousal support. However, even if the agreement calls for the elimination or reduction of spousal support, the court may not enforce the provision if it causes one party undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement.
The parties are also able to agree to the making of a will, trust, or other arrangement to carry out the provisions of the agreement, the ownership rights in the disposition of the death benefit from a life insurance policy, the choice of law governing the construction of the agreement, and any other matter not in violation of public policy or a statute imposing a criminal penalty.
The parties to a premarital agreement are unable to make any determination that adversely affects child support. This is because the parties are unable to enter into a contract that harms their children. It is the child’s right to support, not the parents. The parties may only contract as to child support if the agreement provides support above the statutory guidelines. Similarly, the parties are unable to include any agreement as to custody in their premarital agreement. Custody is a determination that must be made at the time of the divorce using the best interests of the child standard.
Illinois courts will uphold premarital agreements if they find them to be valid and enforceable. A premarital agreement will not be upheld if the court believes it was not executed voluntarily, or executed under duress. It is not enough to say that a party would not marry another party without a premarital agreement in place, and a party does not have to have an attorney review the agreement to be enforceable. A court will find the agreement unenforceable if it was given close to the wedding date, and without giving the other party time to review the agreement and retain an attorney if they so choose. A premarital agreement will also not be upheld if the court determines that the agreement is unconscionable. A common factor in unconscionability is whether there was a fair and reasonable disclosure of the property or financial obligations of the other party, and that each party had adequate knowledge of the property and financial obligations of the other party. To avoid an unconscionability claim, it might be prudent to include a list of the assets and liabilities in the agreement so that neither party can claim ignorance at a later date.