Illinois law allows premarital agreement to broadly address rights in the event of divorce. Premarital agreements can provide critical protection when carefully considered and drafted. If you are going to use a premarital agreement, make sure to understand what the agreement can and cannot do.
Do I need a premarital (“prenuptial”) agreement? I’m getting married for my second time.
We see far more premarital agreements for second or third marriages. And Illinois law provides for broad enforceability of premarital agreements if properly drafted and executed.
Doesn’t my spouse obtain an interest in my premarital assets once we are married?
No.
What can I accomplish with a premarital agreement?
Premarital agreements can provide for a waiver of maintenance (alimony). Illinois law provides for relatively generous maintenance [spousal support] awards. Your premarital agreement can either provide for limitations or waivers of spousal support within. You can also agree for how the court would divide property in the event of a divorce: in ways completely different than what would occur without an Illinois premarital agreement.
Without a premarital agreement how can I protect the assets I now own in the event of a divorce?
Without a premarital agreement, your premarital assets that remain in your name are protected if there is a divorce if:
- You keep your premarital assets in your own name.
- You don’t put them in any form of co-ownership with your spouse.
- You don’t contribute any money owing on the premarital asset (for example mortgage on a house) with funds you are earning as a result of employment or income from any marital property.
These assets then remain your non-marital assets without a written premarital agreement. But this does not address the important issue of a spouse’s potential right to maintenance.
Can I protect my assets from going to my widow without a premarital agreement?
No, but the amount of your estate that goes to your widow is limited by the law. If you have no will, your surviving spouse will be entitled to one-half of your estate and the other half will go to your children, but if you have no children the entire estate will go to your surviving spouse.
Upon my death, can’t I protect my assets from going to my widow by drafting a will leaving her nothing, or leaving her only a small amount?
No. Your spouse can renounce your will and she would be entitled to share one-third of your estate if you have descendants, or one-half if you leave no descendants. By a premarital agreement, however, a spouse may give up all her rights to your estate, including the right to renounce your will and take her statutory share.
In the event of a divorce, can I protect myself against a claim for maintenance (alimony) with a premarital agreement?
Yes. As indicated, you can either limit, or eliminate the claim for maintenance by a premarital agreement. This author has referred to the Illinois maintenance guidelines as one-size-fits all type law. A premarital agreement is a way to fashion an agreement that may be more thought out than the simplistic presumptive formula that Illinois law would provide.
I have heard about the Illinois Uniform Premarital Agreement Act. What does it provide?
Illinois law provides for broad enforceability of premarital agreements. States have adopted different versions of this so-called “uniform” act. Consider the key components to ensure enforceability of a premarital agreement: full-and-fair disclosure of income and assets and the opportunity of each spouse for representation of counsel. Because of the complexity of Illinois, remember that these caveats only provide a good starting place.
What is the short of it?
- If you are careful to keep non-marital assets (premarital, gifts and inheritance), such as real estate, stocks, bonds, etc. in your own name you don’t need a premarital agreement—if you’re only trying to protect those assets.
- If you have non-marital assets, such as investments before the marriage, or gifts or inheritances you receive during the second marriage, strictly keep them in your own name and don’t put them into any form of joint ownership. And don’t mix marital and non-marital property.
- Illinois law favors premarital agreements if both parties to the agreement have a lawyer represent them and review the agreement and the spouses provide full disclosure of assets, liabilities and incomes without the Agreement.
Are there good resources regarding premarital agreements?
Yes. The author highly recommends Linda Ravdin’s “Premarital Agreements: Drafting and Negotiation, Third Edition.” Also, Gitlin on Divorce: A Guide to Illinois Family Law has recently comprehensively updated its chapter regarding premarital agreements.
What other tips can you provide regarding premarital agreements?
- If you are considering a premarital agreement, start the process of retaining a lawyer to draft and a lawyer to assist the other party to review the agreement early. All too often the steps for negotiating and drafting a premarital agreement may be unduly stressful when approached at the 11th hour.
- Do not rely upon a simple form. The Gitlin Law Firm has been involved in cases where a party chose an inexpensive form that failed to address what he or she thought the form would do. For example, I’ve seen premarital agreements drafted by estate lawyers with little knowledge of Illinois divorce law. As a result, the intentions of the party seeking the premarital agreement may not be met.
- Err on the side of over-disclosure of assets, debts and income when drafting a premarital agreement.
- Draft waivers of attorney fees within a premarital agreement carefully because of implications related to minor children.
