How do I ensure that my Prenuptial Agreement is valid?

June 15th, 2024 by Tiffany Hughes

Prenuptial agreements in the 21^st century are becoming increasingly popular, with many couples deciding to protect themselves and also limit court litigation and save thousands and thousands of dollars in attorney’s fees in the event that their marriage ends in a divorce. But how do I ensure that my Prenuptial Agreement is valid?

What is a Prenuptial Agreement?

A prenuptial agreement, commonly referred to as a premarital agreement or a “Pre-Nup”, is an agreement between prospective spouses made prior to their marriage that becomes effective once they marry. The purpose of a prenuptial agreement is to create a contract with enforceable terms dictating what the parties are and are not responsible for should they decide to divorce, which in turn makes the divorce proceedings less hostile, more straightforward, more streamlined with defined terms, reduces litigation of asset allocation, and saves the parties money in legal fees. The “Pre-Nup” allows the parties to be in control of how assets and debts are divided during a divorce and how those assets and debts will be defined.

The parties may contract regarding many different areas, including, but not limited to, defining what is income, what property each spouse may take, defining marital assets and non-marital assets, providing the agreement for asset allocation, and how maintenance may be defined and paid, if paid at all. However, the main issue is making sure that the drafted contract is enforceable.

How do I make sure my prenuptial agreement is valid?

Even if the parties initially agree to be bound, if one party later decides they no longer agree and challenge the agreement in court, a court could ultimately invalidate the agreement if the requirements for a valid prenuptial agreement are not met. In order to ensure you have an enforceable, effective prenuptial agreement, you must have the following requirements:

1. Written Agreement:

In order to be an effective prenuptial agreement, the “Pre-Nup” must be in writing. Once the parties are married, if they wish to amend or revoke the “Pre-Nup”, any amendments or revocation may only be done by a written agreement signed by both of the parties.

2. Signed by Both Parties:

All prenuptial agreements must be signed by both parties in order to be enforceable. While there is no legal requirement for the signatures to be notarized or witnessed for a valid prenuptial agreement in Illinois, witnessing and notarizing a prenuptial agreement is widely recommended in order to prevent challenges against the validity of the prenuptial agreement.

3. Full Disclosure:

One of the more common challenges to prenuptial agreements is fraud. Fraud is commonly argued when one of the parties fails to fully disclose their assets and debts to the other. You must fully disclose all of your finances to your soon-to-be spouse in order to have an enforceable, effective prenuptial agreement.

4. Hire Legal Representation:

Not having an attorney represent you opens you up to vulnerabilities and challenges to the prenuptial agreement in the future. The vast majority of prenuptial agreements are prepared by lawyers because, generally, if the prenuptial agreement was either poorly written, vague, or executed incorrectly the whole prenuptial agreement may be deemed invalid.

Not having an attorney may also lead to challenges regarding the voluntariness and conscionability of the prenuptial agreement. If you or your spouse were not represented by a lawyer when drafting and executing your prenuptial agreement and your spouse can prove you or your spouse lacked the mental capacity or one of you pressured to sign it, then your spouse may have grounds to challenge and dismiss the prenuptial agreement entirely. Drafting a prenuptial agreement with both parties represented by different lawyers can help ensure the validity of your prenuptial agreement, ensure that the agreement is not unconscionable, protect you from being taken advantage of, and afford you the requisite knowledge that you need to enter into a prenuptial agreement.

What do I include in my prenuptial agreement?

Prenuptial agreements help allocate assets and interests. However, there are certain matters prenuptial agreements are not allowed to handle.

Prenuptial agreements cannot deal with matters involving children, including the allocation of decision making, calculating child support or any other child related matters in a divorce. While having a prenuptial agreement is extremely helpful in a divorce, since child related matters are solely determined based upon what is in the best interests of the children, these matters cannot be contracted by the parties.

Further, if a provision of a party’s premarital agreement modifies or eliminates spousal support and that causes undue hardship for one of the spouses, a court has the ability to void that provision of the prenuptial agreement. For example, if both parties were employed at the time the agreement was entered into, but upon divorce one party is unable to work by no fault of their own, the court may set aside the provision and require maintenance for the spouse unable to work.

Need More Information or Representation?

If you are considering getting a prenuptial agreement in anticipation of your upcoming wedding and you are looking to ensure the validity of your prenuptial agreement, give The Law Office of Tiffany M. Hughes, P.C. a call today at 773-893-0228 for a confidential, complimentary 30-minute phone consultation or email Tiffany Hughes directly at Tiffanyhughes@thugheslaw.com. Our entire practice is solely dedicated to the area of family law. We are highly experienced in helping individuals navigate the do’s and don’ts of prenuptial agreements, communicating what is a prenuptial agreement and the purpose of prenuptial agreement, making sure your prenuptial agreement is valid, requirements for a valid prenuptial agreement, drafting an enforceable, effective prenuptial agreement, witnessing and notarizing a prenuptial agreement, what to include in your prenuptial agreement, asset allocation, and advising you as to your legal rights, responsibilities, and obligations, all while protecting your privacy and advocating for your best interests.

About Tiffany M. Hughes, Divorce Attorney, Principal, Managing Partner, The Law Office of Tiffany M. Hughes, P.C.:

Tiffany M. Hughes is a divorce attorney and Managing Partner of The Law office of Tiffany M. Hughes. Recognized as a Top 100 Lawyer in Lawyers Magazine in 2018 and 2019, Super Lawyer from 2016 to date, and in addition to numerous other accolades, Ms. Hughes represents individuals in all aspects of family and matrimonial law proceedings, including litigation, mediation, allocation of parental responsibility (formerly known as custody), parentage, divorce and other child-related matters.

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