Prenuptial & Postnuptial Agreements

Are prenups enforceable in Illinois?

Yes. Illinois enforces prenuptial agreements under the Illinois Uniform Premarital Agreement Act. The agreement must be in writing and signed by both parties, and it takes effect when you marry. A court will refuse to enforce a prenup only if the challenging spouse proves they did not sign it voluntarily, or that it was unconscionable when signed and they were not given fair financial disclosure, did not waive disclosure in writing, and did not otherwise know the other person's finances.

In practice, the prenups that get thrown out are the ones signed under pressure days before the wedding or without honest disclosure. A prenup drafted with full disclosure, reasonable time to review, and independent counsel for each side is very likely to hold up in an Illinois court.

How far in advance do I need to start working on a prenup?

Illinois courts can invalidate a prenup if one party didn't have adequate time to review it before signing. We generally recommend starting at least three to six months before the wedding — but if your date is closer, contact us and we'll let you know what's realistic depending on the circumstances. Rushing the process isn't something we recommend, and it's not something courts look favorably on either.

Can a prenup protect a business?

Yes, and this is one of the most common reasons people in Illinois sign one. Without a prenup, a business you own before the marriage stays non-marital, but the increase in its value during the marriage, your salary and distributions from it, and any contributions your spouse makes to it can become marital property that has to be valued and divided in a divorce.

A prenuptial agreement can define the business, its future growth, and its income as your separate property, set how (or whether) your spouse is compensated for it, and keep a divorce from forcing a valuation or a sale. If you have partners or investors, a prenup also protects them from your divorce becoming their problem.

Do both parties need attorneys?

Not necessarily, but independent legal review is strongly recommended to help reduce enforceability concerns later. One attorney cannot represent both parties in a prenuptial agreement — that's a conflict of interest.

Can a postnup be signed after marital problems begin?

Yes. A postnuptial agreement is signed after the wedding, and many are signed precisely because the marriage is under strain and one or both spouses want clarity about finances if it does not work out. Illinois courts enforce postnuptial agreements as contracts between spouses: the agreement must be in writing, entered into voluntarily, based on honest disclosure of income, assets, and debts, and not unconscionable. Because spouses owe each other a duty of good faith, courts look closely at whether one spouse pressured the other or hid information.

A postnup can address property division, debts, and spousal maintenance. It cannot limit child support or decide parenting issues, which are always subject to court approval based on the child's best interests.

Can a prenup address spousal maintenance?

Yes. Illinois law allows a prenuptial agreement to modify or waive spousal maintenance (alimony) entirely. This is one of the main reasons higher-earning spouses ask for a prenup, and one of the main things the other spouse should think hard about before signing.

There is one limit: if enforcing a maintenance waiver would leave a spouse in undue hardship because of circumstances that could not reasonably have been foreseen when the prenup was signed, a court can order enough maintenance to avoid that hardship. A prenup cannot waive or reduce child support. If maintenance is part of your agreement, the terms should be specific, both spouses should have their own attorney, and the financial disclosure should be complete, because those are the facts a court will examine if the waiver is ever challenged.

Do we have to disclose our finances before signing a prenup?

You should, and skipping it is one of the main ways a prenup gets thrown out later. Under the Illinois Uniform Premarital Agreement Act, a party challenging a prenup can argue it was unconscionable when signed and that they did not receive a fair and reasonable disclosure of the other person's property and debts, did not waive that disclosure in writing, and could not reasonably have known about it. Full disclosure closes that door. In practice that means each of you attaches a schedule of assets, debts, and income to the agreement before anyone signs.

What is the difference between a prenup and a postnup?

Timing, and the law that governs them. A prenuptial agreement is signed before the wedding and becomes effective when you marry; Illinois has a specific statute for it. A postnuptial agreement is signed after you are already married and is treated as an ordinary contract between spouses. Courts look harder at postnups because spouses owe each other a duty of good faith, so a postnup needs real consideration, full disclosure, and independent counsel for each side to hold up.

What makes a prenup unenforceable in Illinois?

Two things. First, if it was not signed voluntarily, which is where pressure, surprise, or a signature days before the wedding come in. Second, if it was unconscionable when signed and the challenging spouse did not get fair financial disclosure, did not waive disclosure in writing, and had no reasonable way to know the other side's finances. Separately, a maintenance waiver can be set aside if enforcing it would cause undue hardship because of circumstances neither of you could reasonably have foreseen. A well-drafted, fully disclosed prenup signed with time to spare survives all of this. Learn more about prenuptial and postnuptial agreements in Illinois.

Can a prenup decide child support or parenting time?

No. A prenup cannot reduce a child's right to support, and it cannot bind a court on parenting time or decision-making. Those are decided at the time of the divorce based on the child's best interests and the support guidelines then in effect. A prenup can address everything else: property, debt, maintenance, and what happens to a business or an inheritance.