Antenuptial/Premarital Agreements

Premarital Agreements

Premarital Agreements are also known as pre-nuptial and antenuptial agreements and all three names mean the same thing. They are agreements that are made by prospective spouses before their marriage to determine who gets what (alimony and/or property) if the marriage ends in divorce or separation. They are also extremely effective in protecting the inheritance rights of children. They must now be in writing and are effective only if and when the marriage actually takes place.

A prenupt is a divorce settlement that happens before the marriage.

All lawyers are aware of the century old adage that "you can disinherit your children but you can't disinherit your spouse." This would be absolutely true under Illinois law (Probate Act) but a properly prepared premarital agreement can go around the Probate Act to allow one spouse to disinherit the other in favor of any their children (especially those from a prior marriage).

The Illinois Uniform Premarital Agreement Act governs these agreements. They are fully enforceable if the law is followed carefully.

The Act allows the parties to contract with respect to:

1. The rights and obligations to property.
2. The right to manage property.
3. Disposition of property upon separation, divorce or death.
4. A waiver of maintenance, or the modification of maintenance.
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
6. Life insurance policies.
7. The choice of law governing the construction of the agreement.
8. Any other matter, including personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

To ensure that the Agreement will be followed by the divorce or probate court, both parties should have an attorney and negotiations should take place well in advance of the wedding. If both parties have a lawyer, it becomes more difficult for the "victim" spouse to later argue that he or she did not understand the Agreement or that it was entered under duress.

It also doesn't hurt if the actual signing of the Agreement is videotaped or done in the presence of a certified court reporter. This serves to verify that all of the statutory and case law requirements have been properly addressed including those pertaining to full financial disclosure.