A prenuptial agreement, premarital agreement, or prenup, is a contract that two people enter into before they get married. A prenup can be used to establish the rights and responsibilities of each spouse in the event of a divorce or death. There are many reasons why couples might choose to get a prenup.

A prenup can be a valuable tool for protecting your assets, your children, and your financial future. When considering marriage, it is important to talk to an attorney to discuss your options and to make sure that you understand the terms of a potential prenup.

Reason #1: Protecting Your Assets

Significant assets, such as a business, real estate, or investments, should warrant a prenup consideration. Establishing a prenup can help to avoid conflict and save money on legal fees should a divorce occur. By having a prenup in place, you and your spouse can avoid having to negotiate the division of assets and debts in court that were written into the agreement. Marital assets are still subject to a court-ordered equitable split under most circumstances (see postnuptial agreements).

While a useful tool in protecting assets and clarifying financial obligations in case of a divorce, a prenuptial agreement does not cover all aspects of a marriage. In fact, certain matters cannot be included in a prenuptial agreement as they are considered invalid under the law. Today, we will discuss what cannot be included in a prenuptial agreement. However, if you and your spouse are interested in signing a prenup, contact a family lawyer to start the process.

Examples of What Must Be Excluded from a Prenup

While excellent tools, prenups cannot be used for everything. For example, prenups cannot be used for:

• Child custody and support - Once a child is involved, the court needs to consider the child’s best interests. Any agreement that pre-determines child custody or support would not be valid in court.
• Illegal activities – Prenuptial agreements cannot be used for or promote illegal activities. For example, an agreement cannot be made to waive child support obligations or avoid tax laws.
• Personal matters – Such as household chores or habits, would not be able to be included in a prenup. Marriage involves compromise and mutual responsibility, so while one person may not enjoy doing laundry and another may hate vacuuming, these matters are generally not considered under the jurisdiction of a prenuptial agreement. Furthermore, what a spouse’s behavior should be, their mortals, and social behavior, cannot be included in a prenup.
• Incentives for divorce – While a prenuptial agreement can indeed specify the division of assets if the couple were to divorce, it cannot provide incentives for either party to file for divorce. Any agreement with provisions encouraging or supporting divorce would not be considered enforceable in court and can even be regarded as fraudulent.

Contact a Naperville, IL Family Lawyer

Ultimately, prenuptial agreements can be an important tool in marriage planning, but there are limitations on what can be included under the law. Speaking to an experienced family law attorney can help establish which matters are not likely to be included in the prenuptial agreement. When you meet with your attorney, make sure that you clearly state what your goals are by creating a prenuptial agreement. Upon hearing what you are looking to accomplish, your family law attorney will work with you to ensure that the prenuptial agreement includes things that are appropriate and legally binding. Contact the DuPage County family law attorneys with Calabrese Associates, P.C. for legal representation. Call 630-393-3111 for a private consultation.

To protect individual property, safeguard business assets, and various other reasons, many couples today are choosing to sign prenuptial or postnuptial agreements. While no one goes into a marriage expecting to get divorced, it can be beneficial to both parties to prepare for the possibility, since almost half of all marriages do end in divorce. By preparing a valid agreement, both parties can protect their financial interests and remove any uncertainty should a divorce come about. However, there are certain issues that can invalidate an agreement that both spouses should understand.

Issues That Can Invalidate an Agreement

Whether the agreement is signed before the couple gets married or once they are already married, a prenuptial or postnuptial agreement still has the same function and can be used during the divorce to settle issues including the division of marital assets and spousal maintenance payments.

However, there are a few reasons why such an agreement may be invalid and unenforceable. These can include:

Getting a prenuptial agreement does not mean that you are preparing for divorce–far from it. Couples who are able to successfully negotiate a prenuptial agreement show excellent communication and compromise skills, which are both indicative of a strong couple. Prenuptial agreements can actually cover more than just divorce terms, and can also help couples who do make it until death do they part. However, there is always a chance that you will one day decide to split up, in which case your prenuptial agreement can protect both of you. There are also legal safeguards in place to prevent a drastically unfair agreement from being enforced, so the risk level might be lower than you think. It is always a good idea to be represented by your own attorney while entering a prenuptial agreement. 

Why Should Every Couple Have a Prenuptial Agreement?

Having a prenuptial agreement in place can be extremely helpful in the event that you do get divorced, but the reasons you need one are not limited to the agreement’s helpfulness in divorce. Reasons you might want a prenuptial agreement include: 

• Financial clarity - During the process of negotiating a prenuptial agreement, both of your complete financial situations will come to light. This can help you enter your marriage with full knowledge of each other’s finances. 

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In many cases, couples who are planning to get married may be considering whether they will need the protection of a prenuptial agreement. A prenup can be beneficial in many situations, including cases where one or both spouses own significant assets or have children from a previous relationship. By entering into an agreement that decides how certain issues will be handled if their marriage ends in divorce, a couple can avoid uncertainty, minimize potential disputes, and provide themselves with financial protection. When creating a prenup, it is important to understand how matters related to spousal maintenance (also known as alimony or spousal support) may be addressed.

Modifying or Waiving the Right to Spousal Support in a Prenup

Under Illinois law, a person may have the right to receive financial support from their former spouse if there is a significant disparity between the parties’ incomes. During a divorce, a spouse may ask that spousal maintenance be awarded, and the judge in their case may consider multiple factors to determine whether this type of support would be appropriate. If maintenance is granted, statutory formulas will be used to calculate the amount that will be paid and the duration that these payments will last.

In a prenuptial agreement, a couple may decide ahead of time whether spousal support will be paid, eliminating the need to ask a judge to settle this issue at the time of divorce. A prenup may state that both spouses will waive the right to receive maintenance, or it may specify that one party will receive a certain amount of spousal support for a certain duration. Conditions may be placed on whether maintenance will be paid. For example, the prenuptial agreement may eliminate the right to support if a spouse commits infidelity or only require maintenance if a spouse earns a certain amount of money.