Purpose of a Prenupial Agreement

A prenuptial agreement (also known as a premarital or antenuptial agreement) is a legal means for a couple to protect the assets each is bringing into a marriage and to codify a variety of rights and obligations that may arise as a result of their marriage. In Illinois, prenuptial agreements, are governed by the Illinois Uniform Premarital Agreement Act.

Requirements for a Prenuptial Agreement in Illinois

Any Illinois couple may enter into a prenuptial agreement, provide that their agreement is in writing and has been voluntarily signed by both parties.  In Illinois,  prenuptial agreement does not require any consideration, that is a couple’s mutual exhange of benefits and/or liabilities, for it to be enforceable.  While a prenuptial agreement is executed prior to a couple’s marriage, it only becomes legally effective upon the couple’s marriage.  Illinois law does not require that either party be represented by or consult with an attorney for a prenuptial to be valid, However,  where one of the parties to prenuptial agreement asks a court to invalidate that agreement, the courts, in making such a decision,  routinely give strong consideration to whether the “disadvantaged” spouse had adequate legal representation during the negotiation of the prenuptial agreement.

Content of a Prenuptial Agreement

Section 4 of the Illinois Uniform Premarital Agreement Act states that parties to  such an agreement may contract as to the following:

  • the rights and obligations of each of the parties in any property, including the right to buy, sell, manage or dispose of the same
  • modification or elimination of spousal support
  • making of a will or a trust
  • ownership and disposition of death benefits in life insurance policies
  • the choice of law governing the prenuptial agreement
  • any other matter that does not violate Illinois public policy or a statute imposing a criminal penalty

In addition to subject matters that are criminal or violated public policy,  a prenuptial  agreement in Illinois may not contain any provisions that would adversely affect the rights of their child(ren) to support.

Enforcement of Prenuptial Agreements

The terms of a couple’s prenuptial agreement are enforceable in Illinois unless the party against whom such enforcement is being sought proves either of the following:

  • the prenuptial agreement was not executed voluntarily
  • not only was the prenuptial agreement unconscionable at the time it was executed but also that prior to its execution, the disadvantaged party did not receive a reasonable disclosure of the other’s property, did not waive the right to receive such a disclosure and did not reasonably have an adequate knowledge of the other party’s property and financial obligations

Amendments or Termination of a Prenuptial Agreement

After the parties are married, their prenuptial agreement may always be amended or terminated.  Illinois law requires that in order for a valid prenuptial agreement to be amended or terminated, the amendment or termination must be in writing and must be signed by both parties.