Many couples think – romantically – that a prenuptial agreement indicates that you expect to get divorced. The prenup is viewed as a romance killer and frightens people about to get married in the way estate planning discussions frighten others. But the idea is well worth considering when you’re thinking about getting married.
What Is a Prenup?
A prenuptial or premarital agreement (prenup) is a legal contract between two spouses setting out how specific issues will be dealt with during the marriage and after it, after a divorce, or the death of one spouse. In Illinois, a prenup must be in writing and signed by both parties to the agreement. No matter when it is signed, however, it is not effective until the couple is legally married. The agreement can be modified or revoked later, so long as the change is in writing and signed by both parties.
What Should I Cover in My Prenup?
A prenuptial agreement can clarify issues during a marriage but is more commonly used to deal with issues after the marriage is dissolved. These issues can include:
- Property Rights– The marital property originated as his, hers, or ours, and the prenup should specify the handling of each. The agreement should address the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control the property.
- Division of Property– Who gets what if you break up. A well-drafted prenup outlines how property is to be divided at the time of a divorce but may include the handling of property at a legal separation or in the event of the death of a spouse.
- Spousal Maintenance– The prenup can specify the amount or duration of maintenance or agree to prohibit it altogether.
- Wills and Trusts– The agreement can require that each spouse have a will or trust reflecting or executing the prenup’s terms.
- Life insurance proceeds– The agreement can specify who owns the policies, who will pay for them, and who will get the proceeds in the event of death.
- Choice of Law– A good prenup will state which state’s law governs the agreement. This is particularly important if there’s a legitimate possibility that one spouse may relocate after a divorce.
- Other matters– The prenup can include agreements on any issue that doesn’t violate public policy or a criminal statute.
What Can’t I Cover in My Prenuptial Agreement?
You cannot use a prenuptial agreement to allocate parental responsibilities or time or address child support issues. Those issues will be handled during a divorce proceeding, and the decision focuses on the child’s best interests.
How Can I Be Sure the Court Will Enforce My Prenup?
Generally, if the prenup was executed correctly and signed by both spouses, a court will enforce it. The court will not enforce the prenup, however, if there is evidence that one party signed under duress or if the court finds the prenup to be grossly unfair.
Why Do I Need a Prenup?
A prenup can resolve a lot of issues while the parties are still happy with one another. These same issues will be much more acrimonious when you’ve already decided that the marriage can’t be saved. Working with a Burr Ridge family lawyer can help you ensure that your prenuptial agreement is fair and fully enforceable.