What Can Your Illinois Prenup Include?
Prenuptial agreements (“prenups”) are no longer reserved for the rich and famous (to the extent they ever were). They are becoming more and more common among marrying couples across all demographics, and for good reason. They are an effective legal tool for protecting assets and managing expectations should unfortunate circumstances come to pass, and they can be very helpful in streamlining the divorce process, saving time, money, and emotional effort for all parties. A knowledgeable Chicago property division and family law attorney can help you determine what can be and what should be in your Illinois prenup.
Some clients ask if they can include personal, non-financial matters in their prenups. They may want to include things like division of household chores, holiday plans, friendships, hobbies, or other personal issues. While you are free to include such items in your prenup, they are generally not legally enforceable.
Child Custody and Child Support
Illinois, like most states, prohibits the enforcement of anything in a prenup that concerns child custody or child support. The law enforces a child’s right to support from their parents, which cannot be waived by contract by the parents before the marriage. The parents’ financial situation will change over time and cannot be predicted in advance. The court will evaluate the financial circumstances at the time of divorce and determine child support accordingly.
Child custody, moreover, is evaluated at the time of divorce based on the circumstances of the parties and the best interests of the children and cannot be preemptively determined. Both during the marriage and at the time of divorce, parental responsibility cannot be determined by contract. A court will evaluate the children’s interest at the time of separation.
Financial Plans and Property Division
Distinguishing between separate and marital property is arguably the most definitive aspect of the majority of prenups. Prenups allow parties to identify their current assets as well as expected future assets (such as income, retirement plans, inheritance, business or stock dividends, etc.) and establish that each party’s separate property will remain separate rather than becoming a part of the marital pool. The prenup can set each party’s right to use, sell, transfer, manage, or dispose of certain property. A prenup can also create an obligation for each party to draft a will to carry out the terms of the agreements.
Prenups can also account for debt liability. Creditors may try to go after a married couple after an indebted spouse enters a marriage with a more financially sound partner. A proper prenup can preserve separate responsibility for debt liability incurred before and during the marriage.
An Illinois prenup may establish whether or not either spouse is owed alimony in the event of a divorce, as well as the amount of payment, but Illinois courts are willing to override prenuptial alimony provisions if the court determines that one party would suffer hardship should the provisions be enforced.
HELP IS AVAILABLE FOR YOUR ILLINOIS PRENUPTIAL AGREEMENT OR DIVORCE
If you’re considering a prenuptial agreement in advance of marriage or are facing divorce in Illinois, contact the compassionate, professional, and experienced Carol Stream family law attorneys at Johnson, Westra, Broecker, Whittaker & Newitt for a consultation on your case at 630-665-9600.