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| Home > Divorce Q&A's > Illinois Premarital Agreements | |||||
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Premarital and PostmaritalAgreements in IllinoisThe Gitlin
Law Firm, P.C., Woodstock, Illinois © 2008
Q:What is a premarital agreement?A:A premarital agreement is a written contract created by two people planning to be married. The agreement typically lists all of the property each person owns, as well as their debts, and states what each person's property rights will be after they marry both in the event of divorce or death. Premarital agreements will often state whether spousal support (maintenance or alimony) will be paid after the marriage ends. Perhaps one of the most frequent scenarios in which premarital agreements are used are those in which one or both of the parties is entering into a second marriage and wishes to preserve property for children or grandchildren from a former union.
Q:I have heard about an antenuptial agreement? What is it?A:This is the same thing as a premarital agreement. Illinois lawyers generally use the term premarital agreement. The short-hand phrase is a “pre-nup.”
Q:Are premarital agreements legal?A:As divorce and remarriage have become more prevalent, and with growing equality between the sexes, courts and legislatures are increasingly willing to uphold premarital agreements. Today, every state permits them, although a premarital agreement can be set aside for certain reasons.
Q:How are premarital agreements set aside in Illinois?A:Illinois (along with approximately 27 other states with 2007 introductions in four other states) has adopted what is called the Uniform Premarital Agreement Act (UPAA). The UPAA provides that a premarital agreement is not enforceable if the party seeking to have the agreement “thrown out” proves either (1) that the agreement was not entered into voluntarily (which is difficult to prove); or (2) that the agreement was unconscionable when it was entered into. Proving either of these facts, together with certain other things which might have occurred before the agreement was signed, will usually be sufficient to render an agreement unenforceable. The party must demonstrate these “other things” must have occurred before the agreement was signed and that the party:
Q:What about a provision that waives a right to maintenance? Is this provision enforceable in Illinois?A:If the agreement was executed after January 1, 1990, (and to a lesser extent even before this date) the answer is generally yes. The law in Illinois is that even if spousal support is waived in a premarital agreement, the agreement is still enforceable with certain narrow exceptions. Illinois law states that if a provision modifying or eliminating spousal support, “causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.”
Q:What does all that mean?A:There are several key phrases here. To attack an agreement which addresses the right to spousal support the focus (in cases after January 1, 1990) is whether there is an undue hardship based upon circumstances not reasonably foreseeable at the time the agreement was entered. The other key phrase is that the other party can then only be required to pay spousal support “to the extent necessary to avoid such hardship.”
Q:What does the phrase, "to the extent necessary to avoid such hardship" mean?A:An example of an Illinois case which discusses this phrase is Marriage of Barnes (4th District, 2001). This case discussed these phrases. Regarding the “unforeseen circumstances” factor in the Illinois Premarital Agreement Act, most of the wife's arguments referred to the husband's character flaws that made continuing the marriage impossible. To this the appellate court stated: However, the record reflects that this was [the husband's] fifth marriage. The fact that this marriage might fail was reasonably foreseeable. The trial court was justified in finding that no undue hardship resulted and that the various “unforeseen circumstances” [the wife] complained of were foreseeable. As to whether the wife suffered an undue hardship, the court commented, “Adjusting from a lifestyle of luxury to one limited by a $24,000 salary may not be easy for [the wife], but we do not find such a transition to be an undue hardship.”'
Q:My premarital agreement was entered into in the 1980's. Does the Act you discussed apply?A:No. This Act only applies to agreements entered into after January 1, 1990. In analyzing whether a premarital agreement is enforceable, the starting place is to determine if it was entered after the effective date of the current Act. An example of relatively case law where the validity of a premarital agreement was upheld (even where it was entered after January 1, 1990) is Marriage of Drag. There the appellate court ruled that an unconscionable agreement is one which no reasonable person would make and no honest person would accept. In that case when the husband made full disclosure of assets, including his worth of $6 million, and wife received in the divorce an award of $1,400 per month for six years, plus $150,000 in lump sum an account of property and $51,000 as half of the tax return, the agreement was no unconscionable. The result would have been even more clear-cut if the agreement had been entered into after January 1, 1990.
Q:Are there rules about what can or cannot be included in a premarital agreement?A:The Illinois Uniform Premarital Agreement Act provides legal guidelines for people who wish to make agreements before marriage regarding ownership, management and control of property; property disposition on separation, divorce and death, spousal support, wills and life insurance benefits. In every state, including Illinois, couples are prohibited from making binding provisions about child support payments.
Q:Do I need a lawyer if my fiance' and I have agreed to enter into a premarital agreement?A:A question and answer from “nolo press” a group that promotes the idea of parties representing themselves whenever possible discusses premarital agreement. Because this Q&A was well drafted I will quote from it. It states: You and your fiance' can go a long way toward making your own agreement by evaluating your circumstances, agreeing on what you want your agreement to cover and even writing a draft of the contract. But if you want to end up with a clear and binding premarital agreement, you'll eventually have to enlist a good lawyer to help you. In fact, you will need two lawyers -- one for each of you. That may sound like surprising advice from advocates of self-help law. But it's true. The laws governing marriage contracts vary widely from state to state. Unless you want to invest your time learning the ins and outs of your state's matrimonial laws, you'll want to find a lawyer who fully understands them. She can help you put together an agreement that meets state requirements and says what you want it to say. For the full text, click here.
Q:This explains the desirability of having one lawyer, but why two?A:The Q&A from the nolo press web site further states: Premarital agreements can still be closely scrutinized by the courts. If you want your agreement to pass muster, having an independent lawyer advise each of you can be an important factor. While most courts don't require that each party to a premarital agreement have a lawyer, the absence of separate independent advice for each party is a red flag to courts. Finally, on a practical note, having separate legal advisors can help you and your fiance craft a balanced agreement that you both understand and that doesn't leave either of you feeling that you've been taken advantage of.
Q:Are there critical elements to making certain that a premarital agreement is enforceable -- under the Uniform Premarital Agreement Act?A:Yes. Generally, I find there are three critical elements to making certain a premarital agreement is enforceable. They are:
Of these three factors, the most important factors are the first two -- whether there has been a full and fair disclosure of assets and whether each party was presented by a lawyer of his or her own choosing.
Q:This is my second marriage. Do I need a premarital agreement if I want my entire estate to go to my children?A:Generally, yes. If there is no will, and the decedent leaves children, then the surviving spouse in Illinois inherits 50% of the decedent's estate. Under Illinois law, a spouse can generally renounce a will and take her / his statutory share -- which is a one-third share of the estate if there are descendants (or one-half if there are no descendants). However, the ability to do so can be waived within a marital settlement agreement. In fact, I have drafted agreements that provided that the right to renounce will be waived if the marriage is under a certain number of years in length. Lawyers refer to this as a "sunset" provision.
Q:Does the Gitlin Law Firm draft premarital agreements?A: Yes. In fact, both Attorneyes Gitlin and Gray lectured regarding premarital agreements for the Illinois Intitute for Continuing Legal Education in 2007. It should be kept in mind that if a party wishes to obtain a premarital agreement, it is critical that the drafting process start well before the wedding. My ruling of thumb is that the party seeking a premarital agreement should contact his or her lawyer at least 60 days before the wedding date. This is because it will take some time to draft an agreement which is acceptable to the client. Then, there must be time for the other spouse to retain a lawyer, review the agreement, propose changes to the agreement, etc. A final option is for the parties who are seeking a premarital agreement to each retain collaborative lawyers. Using this approach often avoids significant positioning regarding the agreement and results in a less adversarial approach as compared to hiring two traditional adversarial lawyers.
Q:Can my spouse and I come to an agreement after the marriage which is not an agreement to divorce but spells out our intent for what might happen if there were to be a divorce?A: If done correctly. There was an interesting December 2007 case addressing post-marital agreements. In Tabassum, the Illinois Appellate court for the Second District addressed the parties' agreement where the husband had been guilty of an act of infidelity and the parties planned to reconcile but as a result of the infidlity they agreed to gift certain property to the wife as her non-marital property. Ultimately the Illinois appelalte court in this case upheld the agreement.
The Gitlin Law Firm, P.C., provides the above information as a service to potential and current clients. A person's accessing the information contained in this web site, is not considered as retaining The Gitlin Law Firm for any case nor is it considered as providing legal advice. The Gitlin Law Firm cannot guarantee the outcome of any case. The Gitlin Law Firm's practice is limited to family law in McHenry County, Lake County, Kane County Illinois, although in drafting a premarital agreement, a lawyer can assist a client from virtually any county. The Gitlin Law
Firm, P.C. www.gitlinlawfirm.com
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