Not all prenuptial agreements are enforceable exactly as they are written. Some prenuptial agreements might not be enforceable at all. If you are getting divorced soon and you signed a premarital or postmarital agreement, you might be wondering how this contract will affect your divorce. While most agreements a couple chooses to include in their prenuptial contract will be enforced, there are some agreements that are not legal. If a certain term in your contract violates Illinois law or public policy, that term might be disregarded. In other cases, the entire enforcement is invalid because one party was coerced or forced into signing. If you have questions about whether your prenuptial agreement will be used in your divorce, it is important to consult an attorney before filing. 

Terms a Prenuptial Agreement Cannot Include 

Some terms in a prenuptial agreement cannot be enforced even if both spouses agree to them. These terms include: 

• Child custody - Child custody decisions must be made based on what is best for the child, determined at the time of the divorce. Parents cannot agree to a custody arrangement before they begin the divorce process. 
• Child support - Parents cannot agree to waive the support their child is entitled to. 
• Unconscionable terms - A term is unconscionable if it is drastically unfair to one person, such as leaving one spouse with no way to support themself. 

Reasons a Prenuptial Agreement Might be Thrown Out

An entire prenuptial agreement could be thrown out and not used in the divorce in cases involving: 

More future spouses are turning to prenuptial agreements these days, as people realize the many benefits of this document. You and your future spouse need to start the conversation someplace, and it is not always an easy talk to have. How you raise the topic could influence whether your future spouse is willing to consider it. An Illinois prenuptial agreements lawyer can help you prepare and plan for this discussion and the agreement process. 

Explain the Benefits of a Prenuptial Agreement

Human nature is that a person needs to see how something is in their own self-interest. There are obvious reasons why you would want a prenuptial agreement, but you need to explain why the other person should want one too. For example, it can assure the other spouse a certain amount of property in the event of the divorce.

Choose the Right Time to Have the Discussion

A prenuptial agreement is a serious matter. You and your future partner are entering into a contractual agreement that should be enforced if and when it is necessary. Both people need to be in the right frame of mind to have this discussion. If your partner is under stress, or they are dealing with other serious things, it may be better to wait to have the conversation. 

Prenuptial agreements, also known as premarital agreements or prenups, are becoming increasingly common in the state of Illinois, including in Dupage County. These agreements are contracts that are entered into by two people before they get married, and outline how their assets will be divided and what will happen to alimony payments if the couple divorces.

Prenups can be an essential tool for protecting the financial interests of both parties in a marriage. In Illinois, the law provides that a lawyer must represent each party in a prenup, and the agreement must be fair and reasonable at the time it is signed. If a prenup is found to be unfair or one-sided, a court may choose to not enforce it.

Reasons for Prenuptial Agreements

One of the most common reasons people enter into a prenup is to protect their separate property, such as assets they owned before the marriage or inheritances they expect to receive. Without a prenup, these assets may be considered marital property and subject to division in the event of a divorce. A prenup can also be used to establish how property acquired during the marriage will be divided, such as a family business or real estate.

It is smart to think about the advantages of a prenuptial agreement if you are getting married or considering asking your significant other to marry you. Contrary to common misconception, signing a "prenup" is not only a way to "get ready for divorce," and in many circumstances, having an established agreement throughout a marriage will be advantageous for both parties. 

Without the help of an experienced attorney, it can be challenging to secure the legitimacy of a prenuptial agreement because the rules governing them are continuously changing. Our attorneys at the Andrew Cores Family Law Group keep up with case law developments and adapt any new knowledge to the issues and circumstances of our clients. We will help you ensure that your prenuptial agreement complies with all current legislation to avoid having it declared void.

What Can a Prenuptial Agreement Cover?

In Illinois, prenuptial agreements may cover any or all of the following topics:

For decades, the Baby Boomer generation – those born between 1946 and 1964 – was the largest generation. But in 2019, the Boomers were surpassed by the Millennials – those born between 1981 and 1996. Now that there are more Millennials than other generations, they are definitely putting their mark on society, including the increase in prenuptial agreements. But unlike Boomers, the issues addressed in Millennial prenuptial agreements have taken a turn.

Finances

One of the major differences with Millennial couples is that more and more of them are choosing to keep their assets separate instead of pooling them together. Commingling assets is one of the issues that can make distributing a marital estate in a divorce difficult. So many Millennial couples are choosing to keep assets separate by drawing up prenups that address who is responsible for major purchases and other debts the couple may have during their marriage.

Student Loan Debt

The Millennial generation has been hit particularly hard with student loan debt and many couples bring that debt into their marriages. However, a prenuptial agreement can address how past and future student loan debt can be addressed. For example, a couple could have a clause in an agreement that says, should they divorce, any marital assets that were used to pay off a spouse’s student debt are reimbursable to the other spouse.