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Looking at the rules governing premarital agreements, P.1

Last time, we looked briefly at some of the factors Illinois courts consider in the division of property. As we noted, courts do take into account the terms of any marital or premarital agreements dealing with property matters. Such agreements, of course, are quite common among celebrities and the wealthy, but they can also be useful for those of more modest wealth.

State law defines prenuptial agreements as “agreements between prospective spouses made in contemplation of marriage and to be effective upon marriage.” Because the agreement is made in contemplation of marriage, the ordinary contractual requirement of “consideration”, which is the quid pro qui aspect of contracts, is not required. There are certain formalities and rules that must be followed with premarital agreements, though, for them to be valid. 

In terms of formalities, premarital agreements must be in writing and signed by both parties to be valid. Oral agreements are not enforceable and will have no weight when challenged in court. With regard to content, premarital agreements are very versatile. Though they may not adversely affect a child’s right to support and may not violate any public policy or criminal statute, they may deal with a number of matters.

The typical issue people think of premarital agreements dealing with is the disposition of property upon separation or divorce, but couples may also deal with the disposition of property at death, or upon “the occurrence or nonoccurrence of any other event.” This gives couples flexibility in their use of premarital agreements.

Premarital agreements may also deal with a number of other matters. We’ll continue looking at this topic in our next post.

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