Yorkville Prenuptial Agreement Attorney: The Basics About Pre-marital and Post-marital Agreements

 Posted on January 12, 2023 in Estate Planning

Yorkville and Kendall County Pre-Marital and Post-Marital Agreement Lawyers

One usually hears about prenuptial agreements in magazines or pop culture news when celebrities plan to get married. This may lead people to think that you need a lot to protect (like the millions of dollars or valuables that celebrities accrue) to think about prenuptial agreements. This is not the case. In fact, prenuptial agreements can be a helpful tool, as both soon-to-be spouses are amicable and agreeable, to create a fallback plan in case the marriage does not go as planned. Illinois has adopted the Uniform Premarital Agreement Act (750 ILCS 10/1), and some key points to the creation and enforcement of a prenuptial agreement are as follows.

What can someone put in the agreement?

Prenuptial agreements are contracts that bring up issues prior to the marriage that the parties agree to. These issues can be in regards to almost anything; from characterizing property as either marital property (defined as (1) any tangible property acquired during the marriage by any party or (2) any nonmarital property that has been commingled with marital property to the point where there is no difference between the two) or nonmarital property (defined as any tangible property (1) acquired prior to the marriage by any party, (2) acquired by gift, legacy, or decent, or (3) acquired after a judgment of legal separation), determining how property is treated during the marriage, determining who gets what property, setting a maintenance amount limit, etc. In fact, couples can attempt to make a provision about almost any matter.

However, there are a few areas that cannot be agreed to. The most principal issue is child support and custody. No provision in the prenuptial agreement can adversely affect child support or custody, meaning you cannot agree to not pay child support or make an agreement on who will receive custody of any children born in the marriage. Additionally, any provision that is in violation of public policy or criminal statutes will also not be considered valid, because the courts will not promote agreements that break some rule or law. One other provision that may not be upheld in a prenuptial agreement is something considered a “moral’s clause.” 

This is any provision that takes morality into consideration, such as basing a provision of the agreement on one spouse’s necessity to maintain a certain weight or appearance during the marriage, or that an affair will bar maintenance. These types of provisions are usually not upheld, because it is considered against public policy to base a marriage on something that has the potential to fluctuate or differ in each person’s determination of if this would be “morally” right or wrong

Enforceable Agreements: How can the agreement be valid, and what could make it invalid?

To make a prenuptial agreement enforceable (meaning a valid agreement), it must be in writing and voluntarily signed by both parties. Being voluntarily signed means there was no coercion or duress that made one person sign the document, such as threatening the person or forcing them to sign. Making the marriage conditioned upon signing the prenuptial agreement is not necessarily coercive, as Illinois courts have found that the spouse can just choose not to get married and remain single rather than sign the agreement. There does not have to be a consideration to make the agreement enforceable, meaning that both parties do not have to get something in exchange for the agreement to be valid

An agreement would not be enforceable if the agreement were “unconscionable” prior to both parties voluntarily signing it. To be unconscionable means that the agreement was completely lopsided, wholly unfair, or there was no proper disclosure of the parties’ finances and property

One can voluntarily waive this right to proper disclosure of finances and property, but it must be in writing. With regards to any provision, but particularly with provisions that give no maintenance, the provision may not be enforced if it will avoid an “undue hardship.” An undue hardship comes up when unforeseen circumstances arise and cause an undue burden to a party

For example, if both husband and wife (who at the time both make high and equal incomes) agreed that neither party would receive maintenance in a properly executed prenuptial agreement, but during their divorce process the husband was involved in a terrible accident, became paralyzed, and can no longer work his job and support himself, the court would likely override the agreement and make the wife pay something to avoid the undue hardship the husband faces.

Prenuptial agreements can also be amended or revoked after marriage. To have a valid amendment or revocation, it must be written and signed by both parties. The courts are strict on this method for prenuptial amendments or revocations, to keep any people outside of the marriage from becoming involved in the agreement and pressing a party to change something in the agreement. Therefore, throwing the prenuptial agreement out the window or burning the document is not a valid revocation, and the agreement would still be valid.

Reasons to Think About Entering into a Prenuptial Agreement

Whether you are entering into your first, second, or fifth marriage, and whether you are young or old, it is always a promising idea to think about if a prenuptial agreement would be good for you. It is a plan that you and your partner can work together to outline and address areas of concern before getting married. If this is not your first marriage, you may want to discuss and plan out areas that were particularly challenging from your previous experience, such as property or retirement plan division. If it is your first marriage, you may not even want to think about the possibility of needing to use a prenuptial agreement, but it may be better to openly discuss property division or characterization that you and your new partner can amicably agree to now and prepare for the unexpected than to leave it up to costly litigation, negotiation, and court intervention. Prenuptial agreements, when properly created, can ease your worries about the future of your assets, property, and other areas that become points of contention if something, unfortunately, does go wrong with your marriage – it’s the plan that no one wants to use, but if you must, you’ll be happy that you did plan for it.

Call a Yorkville Estate Planning Lawyer today for your Pre-Marital and Post-Marital Agreement

Unlike divorce attorneys, our law firm has significant divorce, estate planning, and asset protection legal experience. Divorce attorneys understand the divorce process and how to properly protect assets from a divorce. However, their weakness is their lack of understanding sophisticated estate planning strategies such as the use of living trusts, llcs, and other estate planning and liability planning tools.

Peace of Mind Asset Protection, LLC specializes in estate planning, prenuptial and post-nuptial agreements. We are Kendall County Prenuptial Agreement Attorneys serving the Kendall County areas including the following: Yorkville, Oswego, Joliet, Plainfield, Newark, Bristol, Boulder Hill, Aurora, Sugar Grove, and Montgomery. Call us at 630-780-1034 or contact us through the online contact form