A prenuptial agreement is entered into by persons before they are married with respect to their rights and obligations during marriage. Generally, the agreement, which is the same as a contract, deals with the use and disposition of property during the marriage, at the end of a marriage, and in the event a spouse dies. Premarital agreements are often sought where one or both parties have substantial wealth and assets independent of their prospective spouse or where the parties have been previously married with children who may lay claim to the property of one or other. In other words, prenuptial agreements are a way for parties to decide in advance that they do not want the default state rules to govern their property and rights in the event of divorce or death. In Illinois, prenuptial agreements are valid so long as they comply with certain statutory requirements.
According to Illinois Uniform Premarital Agreement Act, a prenuptial agreement must be written. An oral prenuptial agreement is not enforceable. The agreement must be signed by both parties. Also, the agreement cannot concern an matter or be made for any purpose that would violate public policy. The parties must sign the agreement voluntarily. A prenuptial agreement in Illinois cannot be enforced if its provisions are unconscionable and no “fair and reasonable disclosure” of property and assets is made, the party did not waive rights with respect to the disclosure of the other’s financial obligations and such could not have been discovered without disclosure. Although a prenuptial agreement is valid upon execution, if the marriage is void, the agreement may still be enforced if “necessary to avoid an inequitable result.”
The subject matter of prenuptial agreement may include property rights and obligations, as well as personal rights and obligations. The parties cannot contract in a way that violates criminal law or is against public policy. For example, the prospective spouses may decide in advance whether and to what extent alimony will be permissible if they divorce but if a court finds that such a provision would cause undue hardship due to unforeseeable events, the court may modify the agreement to allow necessary support.