Can a Prenuptial Agreement Address the Subject of Alimony in an Illinois Divorce?

 Posted on September 28, 2023 in Divorce

A prenuptial agreement, also known as a “prenup” or premarital agreement, is a legal contract that a couple may enter into before getting married. This agreement outlines how certain issues will be handled either during a divorce, or upon the death of one spouse, including the division of assets and liabilities. While many people associate prenups with property division, these agreements can also address other important financial issues, such as alimony. For those who are considering a prenuptial agreement and want to know more about their options for addressing alimony, a skilled family law attorney can provide very valuable legal guidance.

Understanding Alimony in Illinois

In Illinois, alimony is also known as maintenance, or spousal maintenance, or spousal support. Alimony consists of financial support paid by one spouse to the other after a divorce. The purpose of spousal maintenance is to help the spouse who receives this support maintain their standard of living and transition into single life.

During a divorce, the court will consider several factors when determining whether to award spousal maintenance,  how much should be awarded, and how long it should be paid. These factors include:

• The income and property of each party;

• The needs of each party;

• The earning capacity of each party;

• The duration of the marriage;

• The standard of living established during the marriage; and,

• Any valid agreements between the parties (such as a prenuptial agreement).

Prenuptial Agreements and Alimony Provisions

A well-drafted prenuptial agreement can include provisions regarding spousal maintenance. These provisions may outline the circumstances in which alimony will or will not be paid, how much support will be paid, for how long, and under what circumstances payments may be modified or terminated.

However, it is important to note that while you can include alimony provisions in your prenup, you cannot completely waive a spouse’s right to seek spousal maintenance if certain conditions are met. Illinois law states that a provision in a prenuptial agreement that attempts to waive or modify spousal maintenance is unenforceable if it would leave a spouse without a reasonable means of supporting themselves.

When drafting alimony provisions in a prenup, it is crucial to consider the financial circumstances of both parties. The court will assess whether the agreed-upon amount is fair and reasonable based on each party's income, assets, and earning capacity at the time of divorce. If a prenuptial agreement attempts to set an unmodifiable amount of alimony a spouse can receive, or eliminates their ability to receive support altogether, and this would cause that spouse to experience “undue hardship” because of issues that would not have been foreseeable at the time the agreement was signed, the court may decide not to enforce these terms in the prenup, and alimony may be awarded as needed.

It is a good idea to include language addressing what will happen if there are significant changes in either party's financial situation during the marriage or after separation. This can help a couple make sure both parties will have the necessary financial resources in the future, while also avoiding disputes or the possibility that a court may decide not to enforce the prenup.

Enforceability of Prenuptial Agreements

In order for alimony provisions within a prenuptial agreement to be enforceable, certain requirements must be met:

• The agreement must be voluntary, and entered into by both parties with full disclosure of their finances;

• Both parties should have had an opportunity to consult with their own attorneys before signing the agreement; and,

• The terms should not be unconscionable or grossly unfair. This means that it can’t be possible for the terms to possibly, under certain circumstances, leave one spouse destitute while allowing the other spouse to maintain an extravagant lifestyle.

If these requirements are met, courts will generally uphold alimony provisions in valid prenuptial agreements. However, it is important to remember that judges still have discretion when determining spousal maintenance awards. They may permissibly deviate from what was agreed upon if they believe it is necessary to do so, based on considerations of fairness.

Contact Our Hillside Prenup Attorney

If you are considering a prenuptial agreement, and you have questions about how alimony may be addressed, or how you can protect yourself financially, you will want to seek guidance from an experienced family law attorney. At Law Office of Vincent C. Machroli, P.C., our Oak Park prenuptial agreement lawyer has extensive knowledge of the Illinois laws that pertain to marriage, divorce, separation, and related issues, and we can work with you to draft a prenup that will meet your requirements. Contact us at 708-449-7404 to schedule a free consultation.