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Prenuptial Agreements in Illinois

Posted on in Prenuptial Agreements

DuPage County family law attorneyMany couples feel like premarital or prenuptial agreements take the romance out of what should be one of the most romantic times in their lives: getting married. However, prenuptial agreements (“prenups” for short) can make a huge difference if you wind up getting a divorce; they can cut down on arguments and misconceptions, and with the help of a good attorney, may save you months of legal wrangling and bad blood.

The Basics

Prenuptial agreements are used in many cultures throughout the world. For example, there are such things as Jewish prenuptial agreements, which safeguard a Jewish woman from being rendered unable to remarry. Each prenuptial agreement is based in mutual trust, but there are varying formats in which these agreements are created.

Many people still operate under the misconception that prenuptial agreements are only for the wealthy, when this is no longer the case. In Illinois, the Uniform Premarital Agreement Act (UPAA) was enacted in 1990, which sets out specific rules for couples in any tax bracket to follow. Women are also attaining more equality and financial power in our society, and, as such, prenuptial agreements are becoming more common.

Some of the main uses for prenuptial agreements today are:

  • Protecting oneself from being forced to assume your spouse’s debts;
  • Determining bequests of specific property to those other than who would succeed to it normally (such as gifts to children frome a previous marriage, rather than to one’s spouse); and
  • Clarifying the property of each spouse, so as to avoid disputes in the future.

Ensuring Enforceability

While prenuptial agreements are far more common than they were formerly, there are still strictures that must be followed in order to ensure that your prenup is enforceable The Illinois UPAA (and most other versions of the Act) has a provision that allows prenuptial agreements to be set aside if:

  • The agreement was not entered into voluntarily, or
  • The agreement was unconscionable, or too one-sided, when it was created.

Proving that someone did not enter into a prenup voluntarily is extremely hard to do. If it cannot be done, a good attorney will usually try to prove the agreement was unconscionable. This will happen most often if financial irregularities can be shown. If one partner was never provided a full accounting of the other’s debts, for example, the agreement may be set aside. Another possibility is that they were never afforded a chance to expressly distance themselves from those debts, even if they were given a full accounting. An unconscionable agreement is generally defined as one that no reasonable person would enter into and no honest person would accept.

One important thing to be aware of in creating a prenup is that Illinois, like nearly every other state whether it has adopted UPAA or not, does not permit binding agreements to be made regarding child support payments. Should divorce occur, that question must be handled by the divorce court. The mere existence of a provision on child support payments will not usually invalidate the entire document, but it may cause a judge to look at the rest of your agreement with a decidedly suspicious eye.

A Qualified Attorney Can Help

Most guidelines for drafting a prenuptial agreement actually advise each party to retain separate lawyers so that you both can receive independent legal advice. If you need a professional well versed in drafting these agreements, contact an experienced DuPage County family law attorney. Call 630-352-2240 for confidential consultation today.

Sources:

http://www.jlaw.com/Forms/prenuptial-article.html

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59

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