Chicago Illinois Pre-Nuptial and Post-Nuptial Agreements

A pre-nuptial agreement is a contract between persons who plan to get married that governs ownership of property and earned funds during marriage and distribution of assets and income in the event of a divorce. All prospective spouses should consider whether such an agreement would be appropriate for the upcoming marriage. Although the raising of the issue of pre-nuptial agreements may be awkward, these agreements actually assist the parties to the marriage because they avoid disputes later. Also, particularly in marriages in which one party is in a family business, such an agreement can protect the family business from being entangled in a divorce proceeding. For those who are entering into second marriages, such agreements provide comfort to children that they will receive their inheritances in the event of divorce.

Who needs a prenuptial agreement? Some attorneys answer “everyone.” In reality, a prenup may make sense for you... and it may not. Generally speaking, prenups are a good idea for folks with more assets to protect. One court put it this way:

Today, divorce is a common-place fact of life... As a result there is a concurrent increase in second and third marriages – often of mature people with substantial means and separate families from earlier marriages. The conflicts that naturally inhere in such relationships make the litigation that follows even more uncertain, unpleasant, and costly. Consequently, people with previous “bad luck” with domestic life may not be willing to risk marriage again without the ability to safeguard their financial interests. In other words, without the ability to order their own affairs as they wish, many people may simply forgo marriage for more ‘informal’ relationships. Prenuptial agreements, on the other hand, provide such people with the opportunity to ensure predictability, plan their future with more security, and, most importantly, decide their own destiny

Still, prenuptial agreements, by definition, beget unfairness. This is so because, in a divorce, “fair” is what a judge says it is when a judge says it; that is, at the end of a divorce case. Any result that differs from what a judge would order is, at least to a divorce lawyer, technically unfair. To the extent a prenuptial agreement obtains a result that is different from what a divorce court would award, the result is unfair. Still, “one man’s unfairness may be another’s justice;” and as long as the husband and wife are satisfied, who else could care?

Also to be considered, however, is the fact that prenuptial agreements can oftentimes serve to undermine the very vows of the marriage. Protected by a solid agreement, one spouse may decide to breach the marriage vows secure in the knowledge that, even if the breach is discovered, the aggrieved spouse will face the dilemma of either accepting the breach, condoning the betrayal, and preserving the marriage – or accepting the possibly costly and punishing terms of the prenuptial agreement and ending the marriage.

The most commonly sought objective in most prenuptial agreements is to ensure that one’s property passes to the children or other relatives from a first marriage rather than to the second spouse or his or her family. Illinois’ divorce laws define “marital property,” but spouses (before or after the marriage) may agree to a different definition. They may identify certain properties as marital or non-marital. For example, they may agree that one spouse’s pre-marital homestead be considered to be marital property; or that any businesses created during the marriage be considered the entrepreneurial spouses non-marital property. The spouses agree to a specific division of property (say, 50/50) or to the allocation of a particular item (“the wife shall receive a new, full-size, automobile and cash equal to four-year’s tuition at Harvard University). . Likewise, they may agree on maintenance (alimony) payments (both amount and duration) and lump sum payments (“if we divorce within five year’s of the date of marriage, husband shall pay to wife one million dollars; if we divorce after five but within ten years of marriage, husband shall pay to wife five million dollars”).

Effective Date: Prenuptial agreements become effective upon marriage. If you sign a prenuptial agreement, but the marriage is called off, the prenup has no effect.

Legal Representation: Illinois law does not require that a fiancé consult with an attorney or that an attorney approve a prenuptial agreement for the agreement to be held valid. Nevertheless, when asked to invalidate an agreement, courts routinely consider whether the disadvantaged spouse had adequate legal representation during the negotiation of the agreement. Courts are far more willing to find “duress” – and invalidate a prenuptial agreement – where a fiancé lacked legal representation and where the fiancé was not informed of his or her right to consult an attorney prior to signing the agreement.