Dos and Don'ts of Prenuptial Agreements

 Posted on May 30, 2017 in Prenuptial Agreement

Prenuptial agreements, or prenups, are becoming more common, as they acquire a solid reputation for safeguarding one’s interests and assets. However, they are not cure-alls for marriages. There are some things that simply cannot be addressed in a prenup. It can help avoid disagreements if your prenuptial agreement is crystal clear on what it disposes of and if you do not try to do too much with it.

DO: Distinguish Between Marital and Non-Marital Property

This is arguably the primary purpose of a prenuptial agreement. Illinois law lists it as the second right that couples have in the creation of such a document, and indeed, that is what most are used to accomplish. Dividing one’s property in a prenuptial agreement can save significant time and trouble in divorce court, which can provide a significant boost to post-marital relations.

DO: Protect Your Spouse From Your Debts

According to Illinois law, you can be held responsible for debts incurred during the marriage if they are of a joint nature, or if you cosign for your spouse. Examples include car loans and mortgage payments, but there are others. Also, even creditors make mistakes sometimes. With a prenuptial agreement, you and your spouse can specify a list of debts already incurred before your marriage, so neither of you are forced to pay for the debts of the other.

DON’T: Include Anything Regarding Child Custody

Illinois law, and indeed the law of most states, prohibit any item in a prenup that deals with child custody or support. The law holds that is the right of a child to support from their parent, and if couples were allowed to agree to no support or less support in a prenup, it might not be enough to adequately support a child or children. Prenuptial agreements are generally allowed to deal with spousal support payments, but in Illinois, they may deal with modification or elimination only. It is not usually permissible to contract for spousal support; only an Illinois court may award that.

DON’T: Include Personal Matters

Prenuptial agreements are primarily designed to answer financial questions for a couple, and as such, most personal issues may not be disposed of in the agreement unless they contain a significant financial component. For example, provisions detailing where the family will spend December holidays has little to no financial relevance, so it will not be upheld by a court. It is, however, important to ensure that if you insist on including such provisions, that you include a severability clause in your agreement so that the entire document is not deemed unconscionable or unenforceable for the sake of one provision.

DO: Seek Professional Assistance

Prenuptial agreements are complex by their very nature; they must cover a lot of ground in a relatively short document. If you require outside assistance in drafting an agreement or have questions, it is best to seek the advice of an experienced Lombard family law attorney. Call 630-426-0196 for a confidential consultation at A. Traub & Associates today.

Sources:

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