How Do Premarital Agreements Impact Divorces?
By: Gordon & Perlut, LLC
If you have a premarital agreement (750 ILCS 10/1) in place with your spouse and you are planning to file for divorce, you may be wondering how the agreement will impact your case? If you are working with the same family lawyer who represented you at the time you signed the premarital agreement, the impact of that agreement might be more straightforward.
However, for most married couples in the, their premarital agreement was a document they signed years or even decades ago, and both spouses had entirely different counsel then, making it difficult to know with certainty what to expect when it comes to your premarital agreement and your divorce.
While you should always have an experienced divorce attorney evaluate your case and provide you with detailed answers based on your specific circumstances, we can provide information about the potential impact a premarital agreement can have in your divorce case.
Any Agreements Concerning Child Support Will Not Be Upheld
Like other states, Illinois does not allow parties to agree to any modification or elimination of child support – such a provision will not be upheld.
Classification of Property May or May Not Be Enforceable
Parties often enter into premarital agreements to clarify, in the event of divorce, whether certain property will be excluded from the classification of marital property (and thus whether certain property will not be divided in a divorce). For example, spouses might enter into an agreement that all interest earned from spouse #1’s investments during the marriage will remain separate property and will not be subject to division if the parties get divorced.
Generally speaking, the Illinois Uniform Premarital Agreement Act allows parties to enter into agreements about a wide variety of financial issues, including “the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.” However, there are a handful of reasons that could result in such an agreement being invalidated. According to the statute, the following could invalidate an agreement about the classification of separate and marital property:
Waiver of Right to Spouse Support or Maintenance May or May Not Be Enforceable
Parties can agree to waive spousal support in a premarital agreement, and it can be upheld. However, there are some situations where a court will not uphold this type of agreement. First, if any of the above reasons for invalidating the agreement exist, the agreement to waive spousal support will not be enforced. Second, under Illinois law, if the premarital agreement eliminates spousal support and that elimination “Causes one party to the agreement undue hardship in light of the circumstances not reasonably foreseeable at the time of the execution of the agreement,” then the court can decide not to enforce it.
Choice of Law Provisions Could Govern Where Your Divorce Case is Heard
Parties can agree to a choice of law provision, and that choice of law provision can be upheld. In other words, the premarital agreement can determine where the case is heard and under what statute it will be reviewed.
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