Understanding the Limits of Prenuptial Agreements

 Posted on October 14, 2015 in Prenuptial Agreements

When many people think about a prenuptial agreement, the first thought that comes to mind is a wealthy, celebrity couple looking to protect their individual assets and property. Prenuptial agreements, sometimes called premarital agreements, are certainly useful in providing financial security in the event of a possible divorce, they do not have unlimited contractual powers. Before signing a prenuptial agreement, it is important to recognize some of things they cannot do.

They Cannot Be Too One-Sided

Provisions regarding the powers and limitations of prenuptial agreements are contained in the Illinois Uniform Premarital Agreement Act. While there are several possible reasons that an agreement could be found to be unenforceable, including coercion or deception, only one concerns the terms of the agreement itself. A prenuptial agreement will not be enforced if it is shown to be unconscionable. So what does that mean?

An unconscionable agreement is one that is found to be too unfair to one party based on the individual circumstances. For example, if a couple signs a prenuptial agreement stating that, in the event of divorce at any point in the marriage, the wife will receive no part of the marital estate, regardless of her contributions, such an agreement is likely to be found unconscionable. Courts will allow a couple the discretion to create almost any agreement they wish, as long as the terms are reasonable.

They Cannot Compromise the Rights of a Child

While some considerations for children can be included in prenuptial agreements, an agreement cannot forfeit or affect any child’s rights to support or access to either parent. A prenuptial agreement is appropriate—in fact, encouraged—for a couple with children from previous relationships, and may be utilized to provide for the support of such children via individual or marital assets.

The agreement cannot, however, address custody or support of children the couple has together in the event of divorce. Under Illinois law, custody must be determined based on the circumstances that exist at the time of divorce, not at the time of the marriage. Thus, a prenuptial agreement cannot predict how the couple’s situation will have changed between the marriage and divorce. Likewise, child support cannot be negotiated in a prenuptial agreement either. Support considerations must not only take into account current circumstances, but the right to support belongs to the child and cannot be arbitrarily waived or compromised by his or her parent.

Prenuptial Agreements in Illinois

If you are preparing for marriage, especially a second marriage or one involving children from previous relationships, contact an experienced Arlington Heights family law attorney. We can help you draft a prenuptial agreement that provides security for your family while remaining in full compliance with the law. Call 847-253-3100 to schedule your free consultation at the Cosley Law Office today.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59