Do I Need to Sign a Prenuptial Agreement Before I Get Married?

 Posted on November 16, 2020 in Marital Agreements

The time leading up to your wedding can be a joyous and happy time, while simultaneously a stressful and overwhelming experience for many people. In the days and months leading up to your wedding, you likely have event planning things on your mind, such as picking out the color of the table linens or making a final determination for the guest list. What many people do not think about before they get married is the financial aspect of things. When you get married to another person, you are suddenly financially intertwined with that person and are subject to things such as property division and spousal support in the event you were to ever get divorced. One way to protect your financial health is by signing a prenuptial agreement before you tie the knot. Prenuptial agreements used to carry a negative social stigma, but more people have begun to see their benefits in the past several years.

Prenuptial Agreements are Becoming More Commonplace Among Couples

Just as Bob Dylan once sang in one of his most famous songs, “the times they are-a changin’,” the marital landscape in the United States is also changing. Not too long ago, many people thought it was unsavory or tacky to get a prenuptial agreement before they were married. After all, why would you make plans for the end of the marriage before the marriage has even begun? In recent years, there has been a surge in interest in prenuptial agreements, especially among younger couples. According to a survey conducted by the American Academy of Matrimonial Lawyers, around 62 percent of lawyers who responded reported that they saw an increase of prenuptial agreements between 2013 and 2016, while about half of them reported that they saw an increase in prenuptial agreements among millennials, specifically.

There are a couple of possible reasons for this surge in prenuptial agreements. First, the divorce rate in the United States has greatly increased over the past couple of decades. Depending on the source you consult, the current divorce rate is anywhere between 40 and 50 percent. Second, people are waiting to get married until they are older and consequently have accumulated more assets and property that they need to protect. The average age of individuals when they go to get married for the first time has increased significantly over the past 50 years. According to the U.S. Census Bureau, the average age a man was first married increased from 23.2 in 1970 to 30.3 in 2019, while the average age of a woman at her first marriage increased from 20.8 to 28.4, respectively.

What Is a Prenuptial Agreement?

According to the Illinois Uniform Premarital Agreement Act, a prenuptial agreement is an agreement made by prospective spouses in contemplation of marriage that becomes effective upon marriage. In simple terms, a prenuptial agreement is a contract between two people that dictates how certain issues will be handled in the event of a divorce. These issues can include:

• How your marital property will be allocated between you and your spouse
• How you or your spouse’s retirement accounts will be distributed
• Which assets are considered marital property and which assets are considered non-marital property
• Whether or not spousal support will be awarded
• Whether or not there will be a cap on the amount of spousal support to be awarded
• Dictating whether or not you and your spouse will be required to create a will or trust to uphold the provisions in the agreement
• Any other issue that is not in violation of a law or which would result in a criminal charge or penalty

Legalities and Limitations of Illinois Prenuptial Agreements

In order for your prenuptial agreement to be valid, there are certain rules that your agreement must follow. If your agreement does not meet these requirements, there is a chance the judge will not uphold your prenuptial agreement if you and your spouse do end up getting a divorce. Because of the legally-binding nature of the document and the fact that it is admissible in court, there are several limitations and requirements that it must meet.

One of the most important, basic requirements is that both spouses are fully transparent about their finances when drafting their prenuptial agreement. Each spouse should be forthcoming about their income, including the amount they earn and how they earn it, the property they own, whether that be real estate, physical property, money, stocks or retirement funds and any debts they may owe, such as a mortgage, car loan or credit card debt. Either spouse has the option to waive their right to receive financial disclosure, but notice must be provided in writing.

Another requirement is that the agreement cannot be unconscionable. If the prenuptial agreement is said to be unconscionable, this means it heavily favors one spouse over the other, often leaving one spouse destitute and giving most everything to the other spouse. As stated in the Premarital Agreement Act, all agreements must also be in written form, as oral agreements will not be accepted as binding agreements.

It is also important to realize that prenuptial agreements cannot contain any provisions about child-related issues, such as allocating parenting time or decision-making responsibilities or child support. Illinois law prohibits any prenuptial agreement from containing any language about these things because these issues are the right of the child, rather than the parents. Decisions about parenting time, parental responsibilities, and child support are all made depending on the circumstances present at the time of the divorce, not before the marriage took place.

Benefits of Signing a Prenuptial Agreement Before Marriage

Many people believe that prenuptial agreements are only useful for wealthy couples or people who own a lot of property, but prenuptial agreements can actually be beneficial to almost anyone. Having a prenuptial agreement in place before you get married can help take some of the uncertainty out of your divorce by providing you with a framework of how you will complete the divorce, however, there are also many more benefits to getting a prenuptial agreement before you get married.

Protect Assets You Bring Into the Marriage

One of the things that are thought to be one of the driving factors behind the increase in popularity of prenuptial agreements is that many couples getting married for the first time are bringing more assets into the marriage than their predecessors did. A prenuptial agreement can contain provisions that dictate clearly what is and is not marital property, ensuring that the property you brought into the marriage is the same property you can bring out.

Ensure Your Child’s Property Rights Are Protected if You Remarry

When you get divorced, there is a good chance you may marry again in the future, however, if you, you must first consider how this would affect your children from your previous relationship. A prenuptial agreement can ensure that the property rights of your children stay intact and that the specific property that was meant to be given to them is given to them.

Protecting a Small Business or Personal Practice

If you are a licensed professional who runs a practice, or simply an individual who owns a small business, your business is likely the most valuable asset you own. A prenuptial agreement can be crucial to protecting your livelihood and source of income. Getting a divorce while owning a business or practice can be stressful, but a prenup can ensure your business ownership lies solely with you.

Can a Prenuptial Agreement Be Challenged if the Marriage Ends in Divorce?

The only time you will need to use your prenuptial agreement is if you and your spouse were to ever separate or get a divorce. In that case, your prenuptial agreement would be used as the beginning framework for your divorce agreement. However, your spouse has the right to challenge the agreement in court if they believe the agreement is unfair. Even though prenuptial agreements are legally-binding documents, they are not technically set in stone and can be contested.

If you believe that your prenuptial agreement should be contested, you should contact your divorce attorney immediately. He or she will be able to bring your concerns to the judge assigned to your case and will be able to help you examine the reasons why it would be unenforceable. Once the issue is brought to the court’s attention, a judge may invalidate specific sections of the agreement or even throw out the entire agreement. Here are a few common reasons why a prenuptial agreement may be found invalid:

• The agreement was signed too close to the wedding. The whole idea of a prenuptial agreement is for both spouses to sign the agreement before the marriage takes place. However, you must be careful not to sign the agreement too close to the date of the wedding. Both spouses must sign the agreement before the wedding, or risk having to sign a postnuptial agreement after the wedding instead.
• One spouse was coerced or forced to sign. Another requirement is that prenuptial agreements must be signed by both spouses while they are aware, understanding of the situation at hand. The signature from your spouse must be gained through willing and voluntary means.
• There was no full disclosure given. In a prenuptial agreement, you and your spouse are required to fully disclose all aspects of your assets, debts, and other details of your financial situation. If you determine that your partner was not entirely truthful when drafting the prenuptial agreement, you can ask the judge to invalidate the agreement. If the judge determines that the agreement is unconscionable because of the lack of information, they will also likely invalidate the agreement.
• You both did not hire attorneys to draft the agreement. Technically, it is not legally required to have two lawyers to complete a prenuptial agreement, but it can be useful. When both spouses have their own independent counsel before the agreement is signed, it would be difficult for anyone to argue that they did not understand what was happening or what it meant when they signed on the dotted line.

Contact Our Knowledgeable DuPage County Prenuptial Agreement Lawyers Today

Getting married is supposed to be one of the happiest and most memorable times of your life. Rather than stressing over the complexities and legalities of your prenuptial agreement, let our skilled team of Elmhurst, IL prenuptial agreement attorneys take something off of your plate and help you draft your prenuptial agreement for you. At Weiss-Kunz & Oliver, LLC, we strongly believe in the benefits that a prenuptial agreement can offer married couples and we will ensure your rights are protected in your agreement. To schedule an initial consultation to discuss your case, call our office today at 312-605-4041 to get started.

Sources:

https://www.forbes.com/sites/christinefletcher/2018/09/18/10-things-you-need-to-know-about-prenups/?sh=262f203062ba

https://institutedfa.com/prenuptial-agreements-marriage-contracts/

https://www.census.gov/data/tables/time-series/demo/families/marital.html

https://www.businessinsider.com/why-sign-a-prenup-marriage-divorce-2018-9

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