The Chicago Family Law Blog

Prenup: Make it as Strong as Your Marriage ... or Stronger

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We all heard Chicago nature Kanye West when he rightfully informed us all that it was quite important, nay, necessary, to obtain a prenuptial agreement prior to the commencement of a marital commitment.

Premarital agreements set the expectations of the marriage. They are not a plan for failure; rather, they provide a set of guidelines and expectations for each party’s assets and estates. They can be useful in the event of a divorce, or in preserving one’s estate for their children. They are important for everyone, not just Ruben Studdard and Kanye.

However, what you might not be aware of are the requirements for a valid prenuptial, or premarital, agreement.

Illinois is a subscriber to the Uniform Premarital Agreement Act, which applies to all agreements executed on or after January 1, 1990.

Statutory requirements for a valid prenup include the following:

  • The marriage must actually happen
  • The agreement must be in writing
  • It must be signed by both parties
  • It must be entered into voluntarily
  • It must not be unconscionable (i.e. one-sided) when entered into unless
    • Full and fair disclosure of all assets was made when the agreement was signed, or
    • Disclosure was knowingly waived, in writing, or
    • The parties knew, or should have known about each other’s assets,

Additional tips, to ensure that your prenup is as strong (or stronger) than your marriage include:

  • Have each party represented by their own independent counsel. This will ensure that there are no later claims that one party didn’t understand the agreement or that sufficient disclosure was not made.
  • Make full and fair disclosures. This is probably the quickest way to have your prenup fail miserably. If you are hiding away millions in assets, which are discovered upon divorce, it’s pretty likely that the court will frown upon the resulting one-sided agreement.

Finally, there is one more area which can invalidate a prenuptial agreement quickly. Spousal support can be limited by prenup. However, if it proves to be unconscionable at the time of divorce, (leaving one spouse on skid row while the other is in the Hamptons), the court will invalidate that part of the agreement and award support anyway.

One possible way to address that issue would be to add a spousal support provision that states that no support will be awarded unless that person would otherwise be below the poverty level. Should support be necessary, it should be capped at just above the poverty level, or some other similar cost of living standard.

One thing that a prenup cannot address is child custody and support issues. The court will always place the best interests of the child ahead of the desires of the parents. Any custody or support provisions will have no legal effect.

As always, this information is general and non-specific. Check with your attorney to determine the best course of action for your own assets, liabilities, and potential marriage.

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