What Can Go into a Prenuptial Agreement?

The American Association of Matrimonial Lawyers (AAML) was asked about prenuptial agreements, or prenups, in 2013, and almost two-thirds (63 percent) of those surveyed stated that they had seen a significant rise in their use in recent years, especially by women.

Increased usage signifies increased acceptance. But at the same time, acceptance does not necessarily imply an easy facility with an item or concept. It has also become more common for prenuptial agreements, or parts of prenuptial agreements, to be declared invalid because they were either improperly drafted or attempted to dispose of an issue that may not be disposed of in such a medium. It is important that you know what you can and cannot settle in a prenup.

What Can Be Included

The things that can be included in a prenup are generally items or issues which are in existence at the same time that the agreement is drawn up. For example, it is common for engaged couples to specify certain premarital assets which are not to be considered part of the marital estate even if both spouses use them (normally, a nonmarital asset can become a marital asset if it is used or improved consistently during the marriage). This is because the assets are already in being; they are tangible and thus able to be awarded or preserved. One cannot award an idea or another intangible item, at least not in a way that excludes anyone else’s using it.

The relevant statute says that the parties may contract with respect to each others’ rights and responsibilities “in any of the property of either or both of them.” The important word there is ‘property’—property, at least in Illinois law, is tangible. It need not physically exist (for example, a stock portfolio or a secured debt counts as property, though it may have no physical form), but it must be a defined entity. Any asset that falls under that definition may, at least in theory, be disposed of in a prenup, whether in gifts to people such as children of a previous marriage, or simply retained for your own use.

What May Not Be Included

The major thing that may not be included in prenups under any circumstances is child support or any suggestion of how to apportion it. If it is included, the relevant provision will either be excised or the entire prenup may be invalidated—the rationale is that support is a right that belongs to the child, not to either of the spouses, and one may not sign away someone else’s rights. One might think it acceptable because any children of the marriage do not yet exist, but it does not change the fact that the right to support will rest with someone who is not a party to the prenuptial agreement, and as such, it cannot be disposed of therein.

Other items that Illinois law does not allow in prenups are personal in nature, such as stipulations about where vacations will be spent or with whom holidays will be spent. A prenuptial agreement is simply not the place for that kind of discussion; it is meant to handle legal affairs, rather than those that simply become an object of disagreement or discussion between the spouses. This also applies to anything that might ‘encourage divorce,’ such as a financial incentive to split, though such things are somewhat uncommon.

Need Help Understanding Prenups?

Since there is an increased likelihood that your spouse-to-be may ask about a prenuptial agreement, it is a good idea to understand the basics, even if you are disinclined to sign one. If you have questions, our skilled DuPage County family lawyersare happy to sit down with you and work out answers to your questions. Contact us today to set up an initial appointment.