Prenuptial Agreements In Illinois: Common Mistakes to Avoid
If you and your partner are deciding to form a prenuptial agreement before marriage in Illinois, know that this decision will come with important legal considerations. The foundation of a well-established prenuptial agreement should address issues that would only arise in the event of a legal separation or divorce, particularly with state-specific marriage regulation that may affect this should the marriage end. It should include the assignment of property as well as asset rights to both parties. Whether you come from a wealthy background or not, a prenuptial agreement is a good idea. Having a prenuptial agreement in place can protect assets in the event of a divorce. Avoid these common mistakes in order to ensure that your prenuptial agreement fully protects both you and your partner’s rights.
Overview: Will a Illinois Court Enforce My Prenuptial Agreement?
Like the majority of states, Illinois uses the Uniform Prenuptial Agreement Act (UPAA) to determine the enforceability of prenuptial agreements. This common plan establishes several rules the court can use to determine whether a prenuptial agreement is enforceable, or alternatively, if one person in the former couple somehow violated the contract, thus voiding it.
Following the guidelines, a Illinois prenuptial agreement will NOT be enforceable whenever a spouse can prove:
- He or she did not sign the original agreement voluntarily, or with full knowledge of the agreement (i.e., the agreement was only signed because of fraud, duress, or coercion)
- The agreement was unconscionable (“illegally unfair”) when the couple signed it, and the spouse challenging the agreement:
- wasn’t given a fair and reasonable disclosure of the other spouse’s financial circumstances
- didn’t waive in writing the right to receive a fair disclosure of the other spouse’s assets and debts, and
- didn’t have or couldn’t reasonably have had knowledge of the other spouse’s financial circumstances.
As with any court case, these guidelines are arguable, so having a good lawyer will draw the line between receiving just compensation and nothing. Below, we cover each of the categories listed above in greater depth.
Failure to make the prenuptial agreement official.
Many couples struggle with the idea of a prenuptial agreement, and this is understandable. Prenuptial agreements are often seen as an indicator that the partner requesting the agreement is not as committed to the relationship and ultimately anticipates a divorce. Prenuptial agreements are also often regarded as a sign of greed. It can signify an unwillingness to share a complete life together, something that is seen contrary to the central belief of marriage.
Prenuptial agreements are nonetheless important, especially if you will not be combining your assets with your partner. A prenuptial agreement will not only protect your rights and assets, it will also to protect your partner’s.
Do not attempt to sign a prenuptial agreement without the aid of an experienced, professional attorney versed in Illinois’s specific divorce laws. In the event that you sign an agreement without an attorney present, you may run the risk of having an invalid agreement if a divorce does transpire. Further, when obtaining legal representation, it should be noted that both parties would need his or her own attorney to represent him or her at the time of signing the agreement.
Pressuring your partner into signing the agreement.
In the event that you or your partner was coerced into signing the prenuptial agreement, it is important to know that a court will automatically discard the agreement if this has been proven. There are several forms of coercion. A spouse can receive threats, blackmail, or simply be pressured to sign the agreement. One of the most common forms of pressure to sign a prenuptial is if you and/or your spouse felt rushed to sign the agreement in time for the wedding. Avoid this time pressure; complete the prenuptial agreement well in advance of the wedding date.
Including immoral or otherwise outrageous provisions in the prenuptial agreement.
It is important to work with the aid of experienced attorneys in order to create a fair and impartial prenuptial agreement. An experienced attorney will know what is to be included and not included in the prenuptial agreement so that it does not only fairly represent both parties, but that it also abides by the law. If this agreement has outrageous provisions that favor one side, this can discredit the entire agreement. Common examples of outrageous provisions include the following:
- Maintaining a certain weight,
- Chores only one spouse is obligated to endure, and/or
- Required intimate encounters.
- Having such unusual requests on a prenuptial agreement can weaken the entire agreement. Consult with a professional attorney to ensure that the agreement represents both your interests and rights as well as your partner’s.
- The use of vague language within the agreement.
You need a clear and concise prenuptial agreement, without room for misinterpretations.
The validity of your prenuptial agreement depends on the language used in the agreement. You cannot expect the court to enforce a certain provision if it is unclear. An experienced attorney can draft a prenuptial agreement with right terminology. This will ensure that the prenuptial agreement is as accurate and as precise as possible.
Including arrangements in the prenuptial agreement that you will be unable to fulfill.
If you make a promise or arrangement within the agreement, you have to be able to abide by it. If you do not fulfill your side of the agree, the court can interpret this as fraud. The court will determine if you made these lofty promises to coerce your spouse into signing the agreement.
Seek Professional Legal Representation
When drafting a prenuptial agreement, obtain the guidance of a professional and experienced attorney. He or she can ensure that you and your spouse’s rights are protected, and that the contract is solidified. Again, be sure that you obtain legal representation separately for both yourself and your partner. Doing so will strengthen the agreement since it will be evident that the contract fairly represents both you and your spouse. Avoid prenuptial agreement mistakes before they happen. Contact a qualified family law attorney who can help you throughout the process.