Before you say “I do,” you should consider getting a prenuptial agreement with your soon-to-be spouse. A prenuptial agreement allows soon-to-be married couples to determine how property and assets will be handled both during marriage and in the event of separation, divorce, or death. It also allows couples to decide whether spousal support will be paid in the event of separation or divorce, and even to agree on the amount to be paid and the length of time it will be paid.
Most couples will benefit from a prenuptial agreement, but they are especially beneficial if you are a business owner, if you were previously married, or if you have children from a prior relationship.
If a prenup is for you, here are some important do’s and don’ts to consider:
- DO get your prenup in writing signed by both parties. Oral prenups are not permitted in Illinois.
- DON’T hide any assets or debts from your soon-to-be spouse. Full disclosure of all income, assets, and debts is required for your prenup to be enforceable.
- DO hire an attorney to help draft your prenup. While an attorney is not required for a prenuptial agreement to be enforceable, it is much more likely that it will be enforced if both parties have their own attorney. An attorney will discuss your financial situation with you in detail and make sure the prenup properly protects your current and future property interests.
- DON’T wait until right before your wedding to start the prenup process. There are a lot of important issues to consider when drafting and negotiating your prenup. You want to give yourself plenty of time to carefully consider all of them. Additionally, prenups cannot be signed under duress. Signing right before your wedding day can be considered
signing under duress, which would make your prenup unenforceable. - DO make sure your prenup is not too one-sided. If your prenup is too lop-sided in favor of one party, the court can find it to be unconscionable. An unconscionable prenup is not enforceable.
- DON’T forget to include what happens to your property in the event of divorce or death. What happens to property in the event of death can be different from what happens in the event of divorce.
- DO change your prenup (in writing signed by both parties) after your marriage if your circumstances change.
While discussing getting a prenuptial agreement with your soon-to-be spouse can be uncomfortable, it is also an opportunity to discuss how important financial issues will be handled during your marriage. Prenups may get a bad rap, but you’ll be glad you have one if you ever need it.
