Understanding the Process of Creating a Prenuptial Agreement in Illinois

Prenuptial Agreement

Congratulations on the upcoming wedding! If you are reading this, then a prenup has been suggested to you or you are thinking that you might need one.

 

What is a Prenup?

A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by a couple before they get married. This agreement outlines how assets, debts, and other financial matters will be handled in the event of divorce or death. In Illinois, the process of creating a prenuptial agreement involves several critical steps to ensure it is legally binding and enforceable.

Prenup Process:

1. Start with Open Communication

The first step in creating a prenuptial agreement is having an open and honest discussion with your partner about your financial expectations and concerns. It is essential to approach this conversation with sensitivity and transparency, as it can be a delicate topic. A Prenup is not always needed but might be beneficial if you each have existing families from an existing relationship, or if one of your has significant assets or income. Honest communication is the key to avoiding divorce, so it is best to start before you even get married. If you can’t discuss these difficult subjects before your marriage, it will not change after you are married.

2. Consult with an Attorney

Both parties should hire their own attorneys to ensure that their individual interests are represented. In Illinois, prenuptial agreements must comply with the Illinois Uniform Premarital Agreement Act (IUPAA), and having legal counsel helps in navigating the complexities of this law. An attorney will also ensure that the agreement is fair and that neither party is coerced into signing it. One key competent, explained further in the next step, is a fair disclosure of important information.

3. Disclosure of Assets and Debts

Full and fair disclosure of each party’s assets, debts, income, and financial obligations is crucial. This step ensures that both parties are making informed decisions, and that the agreement is based on accurate and comprehensive financial information. Failure to disclose all relevant financial information can result in the agreement being invalidated.

4. Draft the Agreement

Once you have determined that a prenup is needed, you must work with your attorney to memorialize your goals and concerns.  The next step involves drafting the prenuptial agreement. This document should clearly outline the division of property, financial responsibilities, and other relevant terms. Common provisions include:

Division of Property:  Specifies how assets and property will be divided in the event of a divorce. In particular it is important to understand what things would be like without a prenup. Read more about the division of marital property.

Maintenance (AKA Alimony or Spousal Support): Details any agreements regarding maintenance. If one party has an income significantly higher than the other party, it is only human nature to think, “would they still marry me if they never got my money?” Thus, barring a party from receiving maintenance is one of the most common things within a prenup. You can also consider adding time restrictions on this provision. For example, if either party files divorce within a certain period of time there is no maintenance, but there could be a percentage of maintenance paid after a set period of time.

Debts: How do the parties intend to handle debts incurred after the marriage?  Split equally? Proportionate to income? Assign debt to the person who incurred the debt? There are no right answers here. There are options and it is important to clearly state what you want.

Inheritance Rights: When you get married, you instantly receive certain rights to your spouse’s property upon death. However, those rights can be changed or waived by agreement of the parties. It is important to state what you want.

5. Revisions and Negotiations

Once the initial draft is prepared, both parties should review the document thoroughly with their respective attorneys. This review process is crucial for identifying any issues, making necessary revisions, and ensuring that the agreement accurately reflects both parties’ wishes.

6. Signing of Document Voluntary Execution

For a prenuptial agreement to be enforceable in Illinois, it must be signed voluntarily by both parties. Coercion, duress, or undue influence during the signing process can render the agreement invalid. It is also advisable to sign the agreement well before the wedding date to avoid any appearance of pressure.

Notarization and/or Court Reporter Recommended 

The signing of a prenup is a very surreal moment. It is an important moment, and we recommend that you take it seriously by adding some “formality” to the process. Notarization adds an extra layer of legitimacy and can help prevent future disputes over the authenticity of the signatures. A court reporter can make the process even more formal. When you have a court reporter, you can have the signers provide some brief testimony under oath. This can prevent a later challenge that one of the signers was “forced” to sign or that they were under the influence at the time of the signing.

8. Safekeeping & Review.

After the agreement is signed and notarized, each party should keep a copy in a safe and accessible place. It is also wise to provide copies to the attorneys involved in the drafting process. You should also save a copy to a cloud storage such as Dropbox or Google Drive so that you have it if ever needed.

Once you have signed it, you should store it away, but it is also advisable to review the document every few years to make sure it still reflects what you want. Life happens. Change happens. The document you sign today may not be close to what you would want to happen in 10 years, 20 years, or more. We re3ceommend that the parties agree to review the document every 5 or 10 years, or upon major life events such as the birth of a child, changes in income, or the acquisition of new assets.

Conclusion

Creating a prenuptial agreement in Illinois is a thoughtful process that requires clear communication, thorough financial disclosure, and professional legal assistance. By following these steps, couples can ensure that their prenuptial agreement is fair, comprehensive, and enforceable, providing peace of mind and financial clarity for their future together. If you are considering a prenuptial agreement, consulting with a knowledgeable family law attorney is crucial to navigate the legal requirements and protect your interests. At Reidy Law Office LLC, we are here to guide you through the process and ensure that your agreement is tailored to meet your specific needs and circumstances.

For more information or to schedule a consultation, please contact us at Reidy Law Office LLC.