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Premarital and Postnuptial Agreements

Premarital (prenuptial) and Postnuptial

Agreements in Illinois

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What Is The Purpose Of These Documents?

A prenuptial agreement is a legal document established prior to marriage that details how assets and debt will be divided if the marriage ends in divorce. A postnuptial agreement fulfills the same purpose, except it is established after marriage. These legal instruments can also fulfill other purposes, such as protecting the inheritances of children from a prior marriage.

Requirements

In Illinois, prenuptial and postnuptial agreements, have five basic elements that must generally be met for the agreement to be enforceable:

it must be in writing (oral promises of this kind are always unenforceable);
it must be executed voluntarily;
it must be done with full and/or fair disclosure at the time of execution;
it must not be unconscionable; and
it must be executed (signed) by both parties.

Although not required in Illinois, it is a good idea for both spouses to be independently represented by lawyers when they negotiate and finalize an agreement.

These type of agreements typically address one or more of the following concerns:

Providing for the assignation of marital property at the time of death of one spouse. These agreements may have a surviving spouse waive rights to certain property that they would otherwise have the right to inherit under a will or statutory scheme.
Agreements made in anticipation of separation. These agreements are entered into to avoid the time and cost of divorce proceedings. The disposition of property, other marital assets, custody, alimony and support and the like are agreed to by the marital partners upon separation and the agreement later, usually, incorporated into the final divorce decree.
Agreements that seek to affect the spouses' rights in a future divorce. These agreements address the division of the spouses' assets, including property obtained before and during the marriage, and often limit or waive alimony.

Provisions that are included in these agreements that relate to child custody or child support are not enforceable, nor are provisions that attempt to regulate routine aspects of the marital relationship.

Recent Blog Articles Regarding Prenuptial Agreements

8-19-2018

How To Get A Prenuptial Agreement In Illinois; And 10 Things To Consider Before A Prenuptial Agreement.

Current Illinois Law for Prenuptial and Postnuptial Agreements

(750 ILCS 10/1) (from Ch. 40, par. 2601)
Sec. 1. This Article shall be known and may be cited as the Illinois Uniform Premarital Agreement Act.
(Source: P.A. 86-966.)

(750 ILCS 10/2) (from Ch. 40, par. 2602)
    Sec. 2. Definitions. As used in this Article:
    (1) "Premarital agreement" means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
    (2) "Property" means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
(Source: P.A. 86-966.)

(750 ILCS 10/3) (from Ch. 40, par. 2603)
Sec. 3. Formalities. A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.
(Source: P.A. 86-966.)

(750 ILCS 10/4) (from Ch. 40, par. 2604)
    Sec. 4. Content. (a) Parties to a premarital agreement may contract with respect to:
    (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
    (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
    (3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
    (4) the modification or elimination of spousal support;
    (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
    (6) the ownership rights in and disposition of the death benefit from a life insurance policy;
    (7) the choice of law governing the construction of the agreement; and
    (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
    (b) The right of a child to support may not be adversely affected by a premarital agreement.
(Source: P.A. 86-966.)

(750 ILCS 10/5) (from Ch. 40, par. 2605)
Sec. 5. Effect of marriage. A premarital agreement becomes effective upon marriage.
(Source: P.A. 86-966.)

(750 ILCS 10/6) (from Ch. 40, par. 2606)
Sec. 6. Amendment, revocation. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.
(Source: P.A. 86-966.)

(750 ILCS 10/7) (from Ch. 40, par. 2607)
    Sec. 7. Enforcement. (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
    (1) that party did not execute the agreement voluntarily; or
    (2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
    (i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    (ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
    (iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
    (b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.
    (c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(Source: P.A. 86-966.)

(750 ILCS 10/8) (from Ch. 40, par. 2608)
Sec. 8. Enforcement: void marriage. If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.
(Source: P.A. 86-966.)

(750 ILCS 10/9) (from Ch. 40, par. 2609)
Sec. 9. Limitation of actions. Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.
(Source: P.A. 86-966.)

(750 ILCS 10/10) (from Ch. 40, par. 2610)
Sec. 10. Application and construction. This Act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this Act among states enacting it.
(Source: P.A. 86-966.)

(750 ILCS 10/11) (from Ch. 40, par. 2611)
Sec. 11. Time of taking effect. This Article applies to any premarital agreement executed on or after January 1, 1990.