Illinois Lawyer Referrals and Legal Guidance

Prenuptial agreements – also called a premarital agreements – aren’t just for the wealthy. Cautious couples are using these agreements to protect themselves from a spouse’s debts, to protect a family business, or establish what would happen in the event of a divorce.

Obviously, this can be an uncomfortable discussion. No one enters a marriage expecting to get a divorce. But the reality is that about half of all marriages end in divorce, and making decisions upfront can save you a lot of distress (and attorney’s fees) down the road.

In a divorce, the basic rule is that anything acquired during the marriage is “marital property,” which is divided equitably upon divorce. In a prenup, you can exclude property — homes, retirement accounts, etc. — from being categorized as marital property, and keep it separate. This can be especially useful for second and third marriages. When two people enter a marriage with their own children, financial stability, significant savings, or a small business, they often want to keep their finances separate. They may want their children, rather than their new spouse, to benefit from what they’ve earned or created during their life.

Prenups are mostly for financial arrangements and decisions, and a judge is more likely to uphold an agreement if it stays along these lines. Common topics include responsibility for debt, bill pay, credit card use, bank accounts, future savings or expenses, etc. They are also used to determine spousal maintenance (alimony) if the marriage ends in divorce.

You can also use a prenup to make decisions about who gets your property if you die. The law allows spouses to take a share of property, even if a will states otherwise. You and your future spouse can reject your portion of the other’s estate in a prenup. Again, this is often used in second or third marriages to protect the inheritance of existing children.

It’s best to keep personal arrangements – who does which household chores, for example – out of it. Also, while agreements about property division upon divorce is fine, things such as child custody, support and visitation are usually not appropriate for a prenup. A judge has to make these decisions in the best interest of the child. A prenup that includes these things is more likely to be invalidated if challenged later on.

A prenup also can be invalidated if it was signed under duress or if one person lied about their property or assets. To avoid problems later on, make sure that both you and your future spouse have the agreement reviewed by your own attorneys. Also, make sure you don’t do a last-minute prenup. Give yourselves plenty of time to consider your options, get the agreement reviewed by an attorney and sign it without the deadline of the wedding day looming.  Typically a last minute prenup is not found to be valid.

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