Safeguarding Assets with Prenuptial or Postnuptial Agreements

For many, a prenuptial or postnuptial agreement brings visions of greedy men trying to keep their spouses from assets they would have been entitled to if not for the ‘Prenup’.  To others, prenuptial or postnuptial agreements are something that only the ultra-rich or wealthy enter into.  The truth, however, is that divorce is becoming more commonplace and even the ordinary citizens, both men and women, can benefit from thoughtfully conceived and well-drafted prenuptial or postnuptial agreements.

 The linchpin of agreements of this nature is whether you have assets which have been accumulated solely by yourself or through an inheritance and you desire to protect them from becoming jointly held assets upon marriage.  With an agreement of this nature, you and your spouse can even decide during the course of the marriage which assets will be added or subtracted from the agreement to allow for an easier division of assets in the event of a divorce.  In addition, these agreements can establish future obligations in the event of a divorce and allow the spouses to keep their individual debts separate from one another. Prenuptial agreements in particular become more important if an individual is contemplating getting re-married, has children from a previous marriage, and wishes to ensure those assets go to the children.

Because there is often a stigma that surrounds the execution of these agreements, it is important for each spouse to openly discuss their needs and desires in connection with the dissolution of their assets should a divorce or some other untimely event arise.  Spouses should remember to view these agreements as additional estate planning tools that will afford them peace of mind that their loved ones will be protected. These agreements should no longer be viewed as a byzantine effort of men to deceive their spouses, but rather as a protective measure available to both men and women equally.

750 Illinois Statute Consolidated, Chapter 10 establishes the Illinois Uniform Premarital Agreement Act. As with most states, Illinois recognizes that certain situations will make a prenuptial or postnuptial agreement unenforceable. These agreements will be unenforceable if: they are not signed by both parties voluntarily; if the agreement is found to be unconscionable (i.e. grossly unfair); if one party was coerced or under duress prior to signing the agreement; if there was not a full and fair disclosure of the assets by one or both of the parties; if there was no voluntary and express waiver, in writing, to the disclosure of the assets or financial obligations of the parties or; if one of the parties did not have knowledge of the others properties of financial obligations prior to execution of the agreement.

Illinois law does not require that a future spouse consult an attorney before entering into these agreements but, as always, it is highly recommended that each individual consult a licensed attorney to discuss the pros and cons of prenuptial and postnuptial agreements. Also seek consultation if presented with either agreement before signing them and be cautious if attempting to draft such an agreement on your own. While the court can provide protections against disadvantaged signatory to an agreement, there may be circumstances where the court finds that the disadvantaged individual, who seeks to have the agreement invalidated, was adequately informed and given the opportunity to consult an attorney, but failed to do so.

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