When people sign a prenuptial agreement during their engagement, they often imagine doing so is unnecessary. They intend to have their marriage last forever, only to discover that simply won't be the case later in life. In many cases, it is only when a marriage starts to fall apart that spouses may carefully consider the contents of their prenuptial agreement.
It's only natural to want to protect your assets in a divorce. A properly executed and drafted prenuptial agreement can do exactly that. Educating yourself about Illinois prenuptial agreement law will make it easier to predict if the courts will honor your agreement.
Illinois limits what prenuptial agreements can contain
The primary focus of a valid prenuptial agreement should be the property, assets and debts of the marrying couple. The document should address how the couple will divide assets in a divorce, if certain possessions will remain separate property during marriage and other important considerations.
You can also outline expectations for alimony/spousal support, agreements about real estate and other major purchases and even issues regarding insurance and estate plans. Basically, for the whole agreement to remain valid, it should only focus on details that the courts can legally enforce.
The courts won't enforce certain terms or agreements
While many couples do use prenuptial agreements or even postnuptial agreements to outline their expectations for marriage, clauses about personal behavior, appearance and similar issues aren't legally binding. In fact, in some cases, judges may throw out the entire prenuptial agreement if it contains clauses or requirements that the courts cannot enforce.
One such issue is child support and custody. Individuals do not have the right to set their own child support and custody terms in a prenuptial agreement. Doing so would result in a parenting plan focused on the best interests of the parents, not the children. The courts may review your agreement on these issues, but they will also come to their own conclusion. Worse, inclusion of custody or child support terms could result in the invalidation of the whole document.
Finally, the courts won't uphold the contents of your prenuptial agreement if it clearly favors one spouse over the other. It is not uncommon for wealthy individuals to draft prenuptial agreements that leave their spouses with next to nothing in the event of divorce. The courts may find such terms unconscionable, which will mean that they won't uphold the agreement in your divorce.
Make sure the contract was properly created
Even if the contents are fair and theoretically legally binding, the courts will also look at the circumstances at the time of signing. Many factors can invalidate a contract, including duress, coercion or lying (fraud). Failing to disclose all of your debts and assets in the agreement, for example, could invalidate your prenup.
Both parties should have had access to their own attorneys before signing, and each spouse should be equally protected by the document. If there are signs of involuntary signing or other issues, your prenuptial agreement may not protect you from a messy divorce.