What Is a Prenuptial Agreement in Illinois?

A prenuptial agreement is a before-marriage contract that lays out the specifics of what will happen to the property they own should the marriage fail. When two people are about to head down the aisle, they sometimes enter into a prenuptial agreement first.

What Can a Prenuptial Agreement Cover?

Prenuptial agreements in most states can be used to address many different issues, including:

• What property should be considered marital and what should be considered separate? Instead of having a judge decide this matter pursuant to the laws of your state, you can decide beforehand.
• Protections for certain property. For example, if the engagement ring is a family heirloom on the spouse's side, the parties may agree that in the event of divorce, the ring goes back to the husband.
• You may agree that should one or both spouses want a divorce, the parties are required to go through mediation or arbitration.

What Can't a Prenuptial Agreement Cover?

Prenuptial agreements in most states cannot be used to address certain issues, including:

• Custody and issues of child support are not allowed to be addressed in prenuptial agreements. The court will determine what is in the child's best interest, not the parents.
• Courts do not like provisions that address personal rather than financial issues. For example, a prenuptial agreement should not contain a provision stating where the parties will spend their Christmases.
• A prenuptial agreement should not be used to address anything that is illegal. For example, if the family earns money through the sale of illegal drugs, who gets that business in case of divorce is not allowed to be addressed.

To be sure your prenuptial agreement is enforceable, it is best to make the terms as fair as possible to both parties.

⚖️ At a Glance
Valid vs. invalid prenup factors
Illinois enforces prenups on financial matters — but never on anything involving the children.
Valid factors
• ✓Divide property and assets if you divorce
• ✓Set or waive spousal maintenance
• ✓Protect a business or premarital assets
• ✓Assign responsibility for debts
• ✓Protect children from a prior relationship
Invalid factors
• ✕Decide child support in advance
• ✕Predetermine custody or parenting time
• ✕Include anything unconscionable
• ✕Waive rights without full disclosure
• ✕Dictate non-financial “lifestyle” terms

Who Should Have a Prenuptial Agreement in Illinois?

While many people can benefit from the use of a prenuptial agreement, it is especially beneficial for people in the following situations:

• If you own a business, it is a good idea to look into a prenuptial agreement. This helps protect the business in case of divorce.
• If you own significant assets, a prenuptial agreement is a good idea to keep them protected.
• If you have children from a previous marriage, a prenuptial agreement can assist in protecting the inheritance of those children.

Contrary to popular opinion, prenuptial agreements aren't just for the wealthy. They can provide needed protection to people from all walks of life.

🛡️ Enforceability
What makes a prenup enforceable
Tap each safeguard. Miss these and a court can set the agreement aside.
• In writing and signed by both parties
• Entered voluntarily — no coercion or last-minute pressure
• Full and fair disclosure of assets and debts
• Terms that aren't unconscionable
• Ideally, each party had independent legal advice
A prenup isn’t planning for failure — it’s deciding the terms while you still agree.

Do You Need a Family Law Attorney in Cook County for a Prenuptial Agreement?

While you may be tempted to draft your own prenuptial agreement before getting married, it is a good idea to speak with an attorney regarding how these contracts work in your state, including what you can and cannot address. Courts have a tendency to look for reasons to find these agreements unenforceable, so the help of an attorney is almost necessary to ensure your prenuptial agreement is upheld in case of divorce.

Thinking about a prenup?

Done right, it's clarity — not pessimism. We'll draft one that protects what matters and holds up.

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Keep reading

Postnuptial Agreements in Illinois→High-Asset & Complex Property Division in Illinois→What Is Maintenance, and Why Does Illinois Award It?→


Erik B. Diggs · Founding Attorney

Erik B. Diggs is the Founding Attorney of The Diggs Law Firm, a Chicago family law firm that focuses on contested divorce, property division, and parenting matters. He is admitted to practice law in Illinois and serves clients throughout Cook County and the surrounding area from 77 W Wacker Drive, Suite 4500, Chicago, IL 60601. Call 312-380-1070.

Disclaimer: This article is provided for general informational and educational purposes only and describes Illinois law in general terms; any interactive tools are illustrative estimates, not legal advice or a prediction of any outcome. Reading it does not create an attorney-client relationship. Because every family law matter turns on its own facts, you should consult a licensed Illinois attorney before acting on anything here. The Diggs Law Firm · 77 W Wacker Drive, Suite 4500, Chicago, IL 60601 · 312-380-1070. Attorney advertising.