There are many things to consider before you get married, including whether to sign a prenuptial agreement. A prenup (also known as a premarital agreement) is a contract between you and your future spouse that takes effect when you marry. It is essentially an agreement that discusses how assets will be divided upon separation or divorce.
The Prenup
Entering into a prenup is not the right option for every couple. Some might fear that a prenup sends a message that the marriage is doomed to fail. Others might not bring significant assets into the marriage. However, a prenup can ensure future financial security if the marriage does not last–whether or not you were independently wealthy before getting married. While divorce is a dismal possibility, it is important to prepare for such an eventuality.
A prenup must be in writing and voluntarily signed by both parties. The agreement is not enforceable if a party can prove that he or she did not execute it voluntarily. Other reasons not to enforce a prenup include:
1. The agreement was unconscionable when executed and, before execution, the party:
- Was not given a reasonable disclosure of the other party’s assets or debts;
- Did not voluntarily waive (in writing) the right to disclosure of the other party’s property or financial obligations beyond what was known already; and
- Did not have adequate knowledge of the other party’s assets or debts.
2. The agreement provides that a party is not entitled to spousal support, but due to circumstances unforeseeable at the time the agreement was executed, enforcing that provision would cause undue hardship.
A prenup is a contract, and there are no set terms that must be included. However, there are certain issues that the agreement typically discusses, such as:
- Each party’s rights and obligations regarding premarital and marital property (property acquired before and during the marriage);
- The right to buy, sell, transfer or otherwise manage and control nonmarital and marital property;
- How the property will be divided upon separation or divorce;
- Spousal support;
- Whether the parties should make a will, trust or other arrangement to carry out the agreement; and
- Ownership rights as to life insurance policies.
Note that while a prenup may discuss child support, such provisions will not be binding on a court, which must decide the issue based on the best interests of the child.
The Postnup
If you get married without a prenup, it is not too late to make a contract regarding your financial rights and obligations. Spouses may enter into a postnuptial (or postmarital) agreement discussing the same issues that would have been decided in a prenup.
If you are considering a prenuptial or postnuptial agreement, contact one of our Schaumburg, Illinois family law attorneys today. We can explain the benefits of these contracts and help you determine if either a prenup or postnup is a viable option for you. Contact us today for a free consultation. We can assist those in Chicago and the surrounding areas.