Today, Americans are getting married for the first time later in life than ever before, and there has also been an increase in the number of remarriages. As a result, more and more couples are drafting prenuptial agreements. It is understandable to wonder how age and remarriage affect the need for a prenuptial agreement, or prenup, but the answer is quite simple. Those who marry when they are older—including second and third marriages—generally bring more into a marriage. In this context, “more” does not just mean assets and debts. It also refers to obligations for children, spousal support, and other considerations.
A prenuptial agreement can be a valuable tool that allows both spouses to protect themselves and any children from a previous relationship, but only if the document is drafted and executed properly. Many couples operate under the assumption that their prenup will protect them down the road only to find out that there was a flaw that caused the agreement to become unenforceable. In Illinois, the court may set aside a prenuptial agreement for reasons such as:
- Deception or incomplete disclosure: Before you sign a prenup, you must make a full financial disclosure to your partners, and he or she must do the same. While this can be waived, doing so is rarely a good idea. If you or your spouse leave out or “forget” particular debts or assets, the agreement may not have been based on accurate information, and it may be deemed invalid;
- One party was forced to sign: A prenuptial agreement is meant to be a voluntary contract between the parties. If you were impaired by alcohol or drugs or forced to sign under threats of violence, the court may set aside your agreement. An ultimatum—such as threatening to call off the wedding—is not generally considered to be coercion;
- Lack of counsel or proper consideration: Illinois law does not require both parties to hire an attorney before signing a prenuptial agreement, but having a lawyer at least look over the agreement is a good idea. If your spouse has an attorney and you do not, you could be at a serious disadvantage. It is also important for you to have enough time to read, understand, and agree to the terms of the agreement;
- Extreme unfairness (unconscionability): The provisions of your prenup do not need to be equal for both parties, but they cannot be dramatically one-sided either. For example, if your agreement says that in the event of a divorce, you will assume responsibility for all marital debts while your spouse will receive all of the marital assets, the document is not likely to be enforced.
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