FAQ: Getting a Prenup (or Postnup) in Illinois

As an Illinois divorce lawyer, sometimes help people get a prenuptial agreement. And unlike various garbage websites like LegalZoom and others, I actually consult with my client to create custom documents. Prenuptial agreements are very useful for some people. However, I noticed there are some common questions about prenuptial agreements in Illinois. So I wrote this FAQ about Illinois prenuptial agreements.

What is the definition of “Prenup”?

In Illinois, a prenup, otherwise know as premarital agreeement or prenuptial agreement, is defined as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.

What about a “Postnup”?

Most of the concepts mention in this article apply to prenups as well as postnups. Postnups, or postnuptial agreements, are simply agreements signed after a marriage (instead of before a marriage, like a postnup).

Do any laws govern what’s in a prenup?

Yes, there are several key laws that relate to prenuptial agreements.

The first is the Illinois Marriage and Dissolution of Marriage Act, (the “IMDMA”). That’s basically the divorce law. This is not an article about all divorce laws – that would be a gigantic article. The point should be made that prenuptial agreements should be drafted with the IMDMA in mind.

Additionally, the other key law is the Illinois Uniform Premarital Agreement Act. That law details some of the key elements required in Illinois prenups.

Can we both use the same lawyer?

Many people want to use the same lawyer – to save money, I guess. But that is a horrible idea, and only an unethical lawyer would dare advise both sides of a prenuptial agreement.

Lawyers give advice. Each person who signs a prenuptial agreement needs advice, and that advice is confidential – especially in relation to the other party.

A lawyer cannot represent two people involved in the same issue.

Are premarital agreements written in stone?

Many people like to think that premarital agreements are written in stone. In other words that the premarital agreement can never be changed, and that the terms are locked in forever.

However, that’s simply not the case.

Anyone who signs a premarital agreement has the right to challenge the enforcement of any term of the agreement, or the entire agreement. There is no such thing as a totally bullet-proof prenuptial agreement. However, the point of a premarital agreement, obviously, is that it be enforceable.

A Court will find an agreement to be unenforceable if the person against whom enforcement is sought proves any of the following:

  1. Presence of coercion: that party did not execute the agreement voluntarily; or
  2. The agreement is unconscionable: the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

a) Poor disclosure of assets and debts: was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

b) No waiver of additional disclosure: 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

c) Lack of knowledge: did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Of special concern in many premarital agreements is the issue of spousal maintenance, also know as “alimony” or “spousal support.” Naturally, people want every provision of a premarital agreement to be enforceable in Illinois courts.

But according to the Illinois Uniform Premarital Act, a provision that modified or eliminates spousal support may be unenforceable if the party who wants the support experienced a harship which was not contemplated when the premarital agreement was executed.

For example, suppose a prenup states that a spouse shall receive $500 a month upon divorce for a period of 5 years. If the spouse to receive the support suffers a disability before the divorce, the Court may find that the disabled spouse needs more than $500 a month in support – despite what the prenup says.

Do both people need a lawyer?

Technically speaking, both people do not need a lawyer. However, both people should have a lawyer.

If the prenup ever goes before the court, the judge will  want to see that both people had lawyers. In the Court’s eyes, that increases the chances that both people actually understood what they are getting into.

If one or both of the people does not have a lawyer, then there is an increased chance that a court will find the agreement to be not enforceable.

What does a premarital agreement cover?

A premarital agreement can cover the following:

  1. Rights and responsibilities for all property: 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. Real estate transfer an mortgage rights: 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. How property will be divided if divorced: the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
  4. Spousal maintenance (aka “alimony”): the modification or elimination of spousal support;
  5. Wills and trusts: the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
  6. Life insurance benefits: the ownership rights in and disposition of the death benefit from a life insurance policy;
  7. What law applies: the choice of law governing the construction of the agreement; and
  8. Other matters: any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Is there anything that a prenup cannot control?

A prenup is meaningless in terms of child support.

Although you can write whatever you want in a premarital agreement ,that doesn’t mean it will be enforceable. Here is a list of thing that people may want to do in terms of child support, but that won’t be enforceable as part of a premarital agreement:

  1. Limiting child support
  2. Stating only certain income will be used to calculate child support
  3. Wiping out child support altogether

How do I get a prenup?

As an Illinois divorce lawyer, I draft prenuptial agreements. Generally speaking, the stages of getting a prenup include the following:

  1. Information gathering with lawyer
  2. Sharing information with spouse
  3. Coming to agreement with spouse
  4. Review premarital agreement drafted by lawyer
  5. Signing by both parties

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).