Question

Can a pre-nuptial (antenuptual) agreement address issues of child support, child custody, maintenance (alimony), marital and non-marital property and property division in Illinois?

Sharon S. Mobley

Answered by:
Sharon S. Mobley

Located in Chicago, IL
Berger Schatz

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Answer

Marrying couples who desire to go into their marriage with eyes wide open regarding their future financial and property arrangements can enter a Prenuptial Agreement (also called an “Antenuptial Agreement” – both mean a “pre-marriage” agreement). Prenuptial agreements are legal contracts that allow future spouses to decide in advance how to deal with the property owned before the marriage (“non-marital property”) and property earned or acquired during the marriage (“marital property”), both while the marriage lasts and in the event of a divorce. By providing an opportunity to compromise in advance on potentially difficult issues and create compatible expectations going forward, prenuptial agreements actually serve to avoid conflict during the marriage, thus reducing the chances of a divorce.

Prenuptial agreements typically contain provisions about whether one spouse will pay the other maintenance (or alimony) if they divorce and how much. Some prenuptial agreements provide that the longer the marriage lasts, the more maintenance a spouse will be entitled to receive from the other; in other cases, the spouses agree that neither gets maintenance from the other no matter how long the marriage lasts.

Child-related issues (including child custody and child support) typically are not addressed in prenuptial agreements. Courts generally regard such provisions as against public policy and therefore unenforceable. Courts are required to decide child-related issues based on the children’s best interests at the time of the divorce and have the power to override prior agreements regarding children.

Prenuptial Agreements are becoming more common and socially acceptable. Many couples discover that openly discussing their respective expectations regarding their property and finances during the marriage can be eye-opening and empowering. For marriages that do end in divorce, a valid and well-drafted prenuptial agreement can reduce both the acrimony and the attorneys’ fees.

Answered 10/16/2013

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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