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Are Prenuptial Agreements Enforceable In Illinois?

 Posted on May 01, 2016 in Divorce

Almost all couples go into marriage with the best of expectations, intentions that their union will last and the two will live long, happy lives together. However, sometimes things do not go as planned and the stress and obligations of modern life and marriage may take their toll on even the most loving couple.

Because of these pitfalls, some couples may consider crafting a premarital agreement or prenuptial agreement to plan for just such an event. Illinois is one of many states that allow couples to enter into private contracts to divide assets should the marriage be dissolved.

Illinois Uniform Premarital Agreement Act

The Uniform Premarital Agreement Act (UPAA) allows married couples in Illinois to craft how various marital assets and debts will be settled should the marriage be dissolved. The agreement must be in writing and signed by both parties to be valid.

These agreements do not have to be recorded by the courts and no witnesses are required for their execution, unlike other important executions like wills and trusts. Premarital agreements typically state the value of each person’s assets. Having a premarital agreement may help courts expedite the divorce process.

What can be put into a premarital agreement?

While there are some restrictions, couples are granted a lot of leeway as to what they may agree upon in premarital agreements. Marital assets often encompass much more than homes and cars, and these types of agreements can help allocate other key assets upon divorce. Premarital assets also may be protected by way of a premarital agreement.

Premarital agreements may cover issues such as:

  • Division of property like homes, cars, businesses, and other physical assets;
  • The right to buy, sell, or trade property;
  • Alimony or spousal support;
  • Drafting wills and trusts; and
  • Ownership rights of death benefits, pensions, and trusts.

What cannot be covered by a premarital agreement?

The UPAA does not allow spouses to contract about two keys aspects that commonly become contentious issues during a divorce: child support and child custody. Parents cannot contract with one another to deny a child his or her right to receive parental support and only the courts may approve and enter child custody agreements.

Will courts always enforce premarital agreements in Illinois?

If certain conditions are met, courts will enforce premarital agreements in Illinois. However, there are some situations where courts may find these agreements to be invalid. One key provision in Illinois divorce laws provides that there must be a fair and equitable distribution of the marital assets.

If one person receives much more of the assets than the other, the agreement may be held invalid. Other scenarios include one side failing to disclose all of his or her assets or one party being made to the sign the agreement under duress. While these situations may be rare, couples considering premarital agreements should nonetheless understand these issues.

Wheaton divorce attorneys

If you and your partner are considering creating a premarital agreement and need legal help doing so, contact the experienced Wheaton divorce attorneys of Fay, Farrow & Associates, P.C. for a consultation. Our attorneys have years of experience helping couples plan for the unexpected and can do the same for you. Our office serves clients throughout Wheaton, Naperville, and Downers Grove.

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