Couples getting married often question whether they need a prenuptial agreement with the misconception that it is an “all or nothing” document. The truth is a prenuptial agreement can do many things and the “you won’t get anything” scenario is very uncommon.

What is a prenuptial agreement?

An agreement between a couple in contemplation of marriage that sets certain rights upon a dissolution of marriage or a party’s death.

What rights can be modified?

Certain rights arise as a result of marriage in Illinois and a prenuptial agreement can alter what a person would otherwise be entitled to for certain categories, including but not limited to:

  1. Classification of property as either non-marital (i.e. separate) or marital (i.e. joint).

In Illinois, all property acquired during the marriage is presumed to be marital unless it can be established that it meets a statutory exception such as that it was owned prior to the marriage or received by gift or inheritance. To be the least restrictive, the agreement could simply state what property each party owns as of the date of the marriage to identify what is non-marital. Other agreements eliminate the creation of marital property unless something is placed in joint names, such as placed in joint title or a joint bank account.

  1. Allocation of property in a divorce or legal separation.

Illinois law provides that marital property shall be divided equitably, not necessarily equally, but a prenuptial agreement can determine which items of property a party will receive or allocate percentages of the value of the marital estate.

  1. Right to receive maintenance, formerly known as alimony.

Under certain circumstances, the Court can order a spouse to make payments to the other after the divorce for his or her support. The prenuptial agreement can prohibit either party from receiving maintenance, set limits on an award of maintenance, or reserve the issue for the judge to decide at the time of the divorce.

  1. Right to inherit from a spouse.

In Illinois, a spouse has certain rights to inherit from the other in the event of his or her death during the marriage, regardless of what is provided in the deceased party’s will. The prenuptial agreement can eliminate those rights, allocate specific property to be granted to the surviving spouse, or otherwise work hand in hand with the couple’s estate planning.

What can’t a prenuptial agreement do?

Issues regarding children such as the allocation of parental responsibilities (i.e. decision-making formerly known as custody), parenting time, and the right to receive child support cannot be addressed in a prenuptial agreement.

Do both parties need an attorney?

Yes. The options for crafting a prenuptial agreement are endless and the negotiation of the terms often requires creative solutions to ensure both parties are adequately protected. Most importantly, the couple needs to be well-educated to make an informed decision in entering into the agreement and have advice from independent counsel.

Prenuptial agreements are upheld in Illinois absent rare circumstances and couples should enter into them assuming the terms will be enforced. It’s critical that each side is represented by experienced counsel who will also work to make the process as amicable as possible in advance of such a happy celebration.


Katie Post, Partner

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