Marital agreements, including postnuptial and prenuptial agreements, are tools used by many engaged and married couples. These agreements have become more common and are not only used by couples with significant wealth. They can benefit any marriage, particularly marriages where one spouse has to provide for an ex-spouse or children from a prior marriage, marriages where spouses co-own or one spouse owns a business, and marriages where one spouse earns significantly more than the other.
Marital agreements can determine each spouse’s shared and separate rights and responsibilities to assets during their marriage. These legally binding agreements can also outline how property is divided if the couple gets divorced, along with how other financial decisions are made throughout a couple’s marriage. In addition to planning for the future, they can help spouses or fiancés communicate more effectively over these important matters.
When legally valid and done correctly, marital agreements can benefit a marriage. Unfortunately, a marital agreement that is not carefully created can end up being harmful to one party in a marriage. It’s important to be aware of the potential issues in prenuptial and postnuptial agreements so that you do not agree to something that causes you financial harm now and into the future.
Warning Signs in Marital Agreements
An unfair prenuptial or postnuptial agreement frequently protects the assets of one spouse while leaving the other spouse with little to nothing after a divorce. When this marital agreement is entered into the court, or when the agreement is enacted during divorce, the court should recognize the unfair provisions. The court will not enforce these provisions, and it may not enforce any part of the marital agreement. However, there is a possibility that the court will still enforce the marital agreement, causing potentially severe financial harm to one spouse.
Additionally, a voided or partially enforced marital agreement means that spouses have wasted time, money, and energy when creating the agreement. It’s better for both spouses and their financial stability to know what the warning signs are of an unfair marital agreement before they agree to one. Some red flags include:
- Last-Minute and Rushed Agreement
A sudden prenuptial agreement created shortly before a wedding, or in any rushed situation, is not a good sign. Both spouses should have the time and ability to review the terms of a marital agreement.
If you are unable to give your full attention to a prenuptial or postnuptial agreement, do not sign it. This may be a sign that your spouse is trying to pressure you into signing an unfair agreement or that your spouse is also not thinking clearly enough to agree to a legally binding document. Marital agreements are usually more beneficial when created by both parties working together, so an agreement created and pushed by one party may not have good results.
- There Is No Legal Representation
An effective and fair prenuptial agreement is one that is created and reviewed by experienced legal counsel. If the marital agreement has not been reviewed by your attorney, you shouldn’t sign it. In some cases, the lack of legal support during the creation of a marital agreement is sufficient reason for the court to invalidate it. It also increases the likelihood that the agreement will be invalid due to unfair or illegal provisions. Legal representation protects your personal rights and your financial interests. It can also help you and your spouse negotiate the terms of the agreement.
- Vague or Unrealistic Provisions
Vague marital agreements are often unenforceable and prevent spouses from benefiting from all the help that a marital agreement can provide. If the agreement does not address a couple’s specific assets and financial needs, the couple likely is not discussing important financial matters. If only one spouse’s assets are ignored in the terms, this also points to unfair provisions. The other spouse’s assets may be the only property that is fully protected by the agreement.
Q: When Should You Not Agree to a Prenup?
A: You should always have legal representation present for a marital agreement, like a prenuptial agreement. If your partner does not give you time to fully review a prenuptial agreement, you should not agree to it. Take the time to have a marital agreement attorney review the terms to protect your rights and avoid unfair and vague terms. Ideally, a marital agreement should be created by negotiation and cooperation between both spouses, rather than drafted and created by one spouse.
Q: Is It a Red Flag to Not Want a Prenup?
A: A prenuptial agreement can be helpful for many couples, but they are not always necessary. Prenuptial agreements can help spouses discuss important financial decisions during their marriage and determine what rights each spouse has to certain properties. This can provide a sense of financial stability for both spouses, including the knowledge that they will have stability if they divorce. However, a spouse not wanting to get a prenuptial agreement is not a red flag. Many individuals are influenced by the negative perception of prenuptial agreements, or there may simply not be a financial reason for a couple to get a marital agreement.
Q: What Are Five Things That Cannot Be Included in a Prenuptial Agreement?
A: Prenuptial and postnuptial agreements can cover several matters, but there are some provisions that a court will not enforce. An agreement cannot include:
- Decisions regarding child custody, visitation, or child support
- A waiver for alimony, in some states, but not in Illinois
- Personal preferences, such as requirements about a spouse’s appearance or an outline of household chores
- Anything illegal, such as requiring a spouse to be complicit in criminal activity
- Provisions that encourage divorce
Q: What Makes a Prenup Invalid in Illinois?
A: In Illinois, there are several reasons why a prenuptial or postnuptial agreement may be found invalid and voided by the court. This includes:
- The terms are determined to be unfair or unconscionable to one spouse.
- One spouse did not voluntarily sign the agreement.
- One spouse signed it under force or duress.
- One spouse failed to reasonably disclose their property before the agreement was made, and the other spouse did not waive their right to disclosure.
- The marriage itself was discovered to be void or was voided through annulment.
Contact Stange Law Firm
At Stange Law Firm, we can help you review a prenuptial or postnuptial agreement before you sign it. We can also help spouses negotiate the terms of an agreement. If you have already signed a marital agreement that you worry does not protect your rights, contact our team. We can help talk you through your legal options.