Prenup FAQ from Lake County divorce lawyer

Need a prenup? A Lake County, Illinois divorce lawyer can help!

Many people come to this website seeking info about uncontested divorces in Lake County. But because this site is mostly about getting things done by agreement, I decided to post this article about prenuptial agreements.

Check out this FAQ about Illinois prenuptial agreements.

What is a “Prenup”?

A prenup is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. It is also known as a “premarital agreement” in the Illinois Compiled Statutes.

What law governs prenups?

There are two primary laws that related to prenups, aka premarital agreements.

1. The IMDMA: The Illinois Marriage and Dissolution of Marriage Act, known as the IMDMA, is the “divorce law” in Illinois. All premarital agreements should be drafted by an Illinois divorce lawyer who is familiar with the IMDMA.
2. The Illinois Uniform Premarital Agreement Act: This law is primarily about the form of premarital agreemtns, and what makes a premarital agreement enforceable.

Can we use one lawyer?

If you want to save money, then you are smart! Most people hate spending money on lawyers – I understand that!

But one thing that is really, really stupid to do is to use one lawyer to work with both people in a premarital agreement.

Here’s why:

1. Lack of confidentiality: Lawyers give advice. Each person who signs a prenuptial agreement needs advice, and that advice is confidential – especially in relation to the other party. Therefore, a lawyer would have an unethical conflict of interest in represent both sides in a premarital agreement.
2. The lawyer is a scumbag: Any lawyer who even attempts to represent both sides in a case is a total scumbag and is not someone you want to deal with
3. Enforceability: No all prenups are enforceable. You might say that one that is not enforceable can be “torn up.” However you say it, if both sides don’t have their own lawyers, there is a serious risk that the prenup – or some clause therein – could be unenforceable. the Courts want people to be informed, and if they are not, there are problems with enforceability.

In fact, both people should have their own lawyer.

Are premarital agreements written in stone?

No one gets a premarital agreement thinking that it will be meaningless. Ans while premarital agreements in Illinois can be made to be highly effective, it is important to understand that not all Illinois prenups are written in stone.

Either party to a premarital agreement could challenge the agreement (or some clause therein). That means that in the event of divorce one of the parties could ask the court not to enforce a clause or clauses of the agreement.

The presence of the following factors could threaten the enforceability of the prenup:

1. Coercion:When one parties uses some unfair pressure to get the other party to agree
2. Unconscionability: If an agreement is unconscionable, that basically means that it seems so wrong that it is offensive to the Court’s sense of fairness. An agreement could be held unconscionable if either of the two factors are present:
   1. Poor disclosure of assets and debts: A party or parties did not tender a reasonable disclosure of property and financiaobligationsns that existed prior to the marriage; or
   2. Failure to waive additional disclosure: If here was incomplete disclosure by one party and the other party did not waive additional disclosure, the party who did not fully disclose could run into problems as a result. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
   3. Lack of knowledge: did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

You should also know that according to the Illinois Uniform Premarital Act, provisions that limit or modify spousal support may be found unenforceable if either party suffers an unexpected hardship that was no considered when the premarital agreement was executed.

 What does a premarital agreement cover?

The point of a premarital agreement in Illinois is to address as many issues as possible in advance of any possible divorce.

Therefore, premarital agreements can address the following topics:

1. Rights and responsibilities regarding all assets, including rights involving real estate and mortgages
2. How property will be divided in the event of a divorce
3. Spousal maintenance, formerly known in Illinois as “alimony”
4. Wills and trusts
5. Life insurance requirements and beneficiaries
6. The law to be applied in interpreting the agreement
7. Various other matters

Is there anything that a prenup cannot control?

While the goal of a prenup is to handle as many divorce-related issues as possible, ther are some issues that a premarital agreement cannot control.

An Illinois premarital agreement cannot do the following:

• Limit child support in any manner, or change the method by which it is calculated

The reason for this is that child support is ordered for the benefit of children, and children should not face a hardship simply because parents agreed to it in a prenup.

How do I get a prenup?

As an uncontested divorce lawyer in Lake County, I can draft a prenup for you. Here are the main steps in my process:

1. Review basic goals of prenup
2. Draft prenup
3. Complete asset, liability and income disclosure
4. Obtain agreement of spouse
5. Sign prenup

What does a prenup cost?

The cost of a prenup can be difficult to pin down. That’s because a lawyer cannot determine what work will be required at the outset of a case. Here are some factors that contribute to to cost of a premarital agreement in Lake County, Illinois:

1. Complexity of the finances
2. Negotiations required
3. Degree of editing and changes required
4. The other party’s attorney

If you want your prenup to cost the absolute lowest amount possible, there is probably some book at hte library that has some sort of form. But I’m pretty sure that would lead to very low-quality results, just as a prenup from a website like LegalZoon would. The primary reason for this is that those super-economical/free resources cannot ask you any questions, cannot give advice, and cannot use any foresight to predict what problems might happen in the future.

Does a prenup matter in a Lake County uncontested divorce?

A prenup can for the basis of a marital settlement agreement, or MSA; the MSA is the document which contains all the financial terms of an uncontested divorce in Lake County, Illinois.

That being said, even if a valid premarital agreement exists, the spouses can always agree to get divorced on different terms.