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Prenuptial or Premarital Agreements – What You Need to Know


Published on November 11th, 2020

As you plan your upcoming wedding, the last topic you may want to discuss is what individual property should remain separate or how finances will be handled after the nuptials. A Prenuptial Agreement, also known as a Premarital Agreement, can protect you if your marriage ends in divorce and can set ground rules if a dispute arises with the eventual division of property and, among other things, can even provide a blueprint for how finances are handled during the marriage. If you are concerned or want to know more about the prenuptial agreement process, meeting with an experienced family law attorney as far in advance of your upcoming marriage as possible to help provide protections for your future is an important step to take.

What is a Prenuptial Agreement?

A Prenuptial Agreement (often referred to by its shortened name “Prenup”) or Premarital Agreement is an agreement entered into by two people in anticipation of marriage. Under Illinois law, this type of agreement is only enforceable if entered into freely, voluntarily, without coercion, signed by both parties and with both parties fully informed regarding the terms and conditions. The agreement becomes enforceable upon marriage.

Under Illinois law, parties to a Prenup may enter into terms regarding (including but not limited to):

  1. Rights and obligations of property acquired at any time individually or as a couple;
  2. Rights to manage and control property;
  3. Disposition of property upon occurrence of an event (i.e. separation, divorce, death);
  4. Maintenance (formerly known as alimony);
  5. The drafting of a will, trust, or other estate planning arrangement;
  6. Ownership and disposition of death benefits from an insurance policy;
  7. Choice of law to govern the agreement; and
  8. Any other terms the couple wants to include if not criminal or against public policy.

It is extremely important to note a Prenup only involves financial terms concerning non-child related matters. It may not include terms involving children, including allocation of parental responsibilities (formerly child custody) or child support.

What Can Happen if You Do Not Have a Prenuptial Agreement?

Since the division of assets can become one of the more contentious issues in a divorce proceeding, Illinois courts will divide assets and debts through the process of equitable distribution. The intent of this distribution is to ensure the assets and debts are divided equitably between the couple.

Without the specificity of a Prenup to identify non-marital assets, one of the first things that you or your counsel will need to determine is what property (assets, debts, etc.) is marital and what property is considered “pre-marital” or “non-marital”. While not absolute, separate assets are typically acquired before entering the marriage, or acquired during the marriage by gift or inheritance. Without a Prenup, earnings from employment during the marriage are marital property. A Prenup, should the parties so desire, can cause income earned during the marriage to constitute separate, non-marital property.

One of our experienced family law attorneys will explain the possible outcomes on the allocation of marital and non-marital property. Additionally, we will be able to advocate for your best interests and make sure you get the best possible outcome under the law.

Questions to Ask Your Attorney

If you are considering a Prenuptial Agreement, your first step should be to set up a consultation with a Davis Friedman attorney.

While you will surely have many inquiries about the Prenup drafting and process, here are some important questions you should consider reviewing with the attorney:

  1. Can my fiancé and I use the same attorney to draft our Prenuptial Agreement?
  2. Would our Prenuptial Agreement be valid outside Illinois?
  3. What happens if there is a breach of a Prenuptial Agreement?
  4. Can a Prenuptial Agreement be amended or revoked?

A Prenuptial Agreement can provide your relationship with a foundation of how assets and debts are handled, as well as an efficient distribution of assets if your marriage eventually ends in divorce. If you have any questions about Prenuptial Agreements or Postnuptial Agreements, contact us at 312-782-2220. Working with Davis Friedman, LLP, you can trust that you are receiving a skilled, strong and passionate advocate for your case.

Have questions? Contact us about working together.

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