How to Create a Valid and Enforceable Prenuptial Agreement

 Posted on March 26, 2024 in Family Law

There are some situations in life where personal relationships and the law will intersect. This is true with marriage, which is not just a romantic relationship, but also a legal partnership. Married spouses’ lives will be linked together, and, as a result, the 2 parties will have certain rights and obligations. A prenuptial agreement can serve as a pragmatic foundation for a marriage, ensuring clarity and fairness for both parties right from the beginning. 

While a prenuptial agreement (commonly known as a “prenup”) can provide a legal framework for a couple’s partnership, it may not necessarily affect a couple unless they choose to get a divorce in the future. Creating a prenuptial agreement that is legally valid and enforceable can ensure that the interests of both spouses will be protected if their relationship ever breaks down. An attorney with experience in divorce and family law can help ensure that the terms of a prenup accurately apply to a couple’s situation, and will be enforceable should the need arise.

Key Guidelines for a Valid Prenuptial Agreement in Illinois

A prenuptial agreement may outline how assets and debts will be managed during a couple’s marriage, and it can also determine how financial issues will be handled if the marriage ends. This can provide clarity and certainty with regard to certain subjects  for both spouses, protecting their interests and providing them with peace of mind. To ensure that a prenuptial agreement will stand on solid legal ground in Illinois, it is important that it address the following:

• Voluntary agreement: Both parties must willingly agree to the terms of the prenup, without any form of pressure or coercion. Ensuring that each party has the time and freedom to consider the agreement is fundamental. If one party feels that they were threatened or forced to sign an agreement against their will, they may attempt to contest the prenup during a divorce, possibly making the divorce process more complicated.

• Full disclosure: When creating a prenup, transparency is key. Each party must have a comprehensive understanding of the other's financial situation during the drafting of a prenup. While either party has the right to waive their right to a full disclosure of the other party’s financial assets and obligations, it is usually preferable to have all cards on the table, to ensure that both spouses can make informed decisions about what the terms of their agreement should be.

• Separate legal representation: Each party should be represented by their own attorney when drafting a prenup, and in determining what terms will be included in the prenup. This ensures that both parties fully understand their legal rights and the legal implications of the agreement, and it helps safeguard their interests both during the marriage and in the event of a divorce.

• Fair and reasonable: The agreement must be balanced, not excessively favoring one spouse over the other. It also should not contain any incentives for either party that could potentially encourage them to pursue a divorce in the future. If a prenup is determined in court to be “unconscionable,” meaning that it highly favors one party, and would place the other in a difficult position following a divorce where they would be unable to meet their ongoing needs, a judge can decide that the agreement is invalid.

• Proper execution: The prenup must be signed and executed in accordance with Illinois law. This includes having the proper disclosures and legal representation, as well as ensuring that the document is free from any  errors in its provisions.

Contact Our Hillside Prenuptial Agreement Attorney

If you are considering a prenuptial agreement in Illinois, it is very important to work with a knowledgeable family law attorney who can guide you through the process and ensure that your prenup is solid and enforceable. At Law Office of Vincent C. Machroli, P.C., our Oak Park prenup lawyer is highly experienced in providing the guidance and representation you need to craft an effective prenuptial agreement. To discuss your specific needs and how we can assist you, please contact us at 708-449-7404 and schedule a free consultation.