Premarital Agreements in Illinois; Do They Work?

Premarital agreements in Illinois; do they work?

I recently read with interest that a premarital agreement drafted on behalf of Major League Baseball superstar, Barry Bonds, was ruled invalid by an Appellate Court in the State of California. This was interesting because I recall Barry Bonds signing a contract about ten years ago which paid him approximately $42,000,000.00 over a six year period. My first thoughts were, “Oh my! If Barry Bonds had as much money as necessary to hire the best legal counsel in the land, how did he end up with a premarital agreement that was ruled invalid by the California Appellate Court?”

prenuptial agreement signingIn Mr. Bonds’ case, there were three glaring problems surrounding the execution of his agreement:

  1. The agreement was signed the day before his wedding;
  2. His fiancé did not have her own attorney; and
  3. Mr. Bonds’ attorney told his fiancé that if the agreement was not signed today, there would be no wedding the following day.

The signing of a premarital agreement is usually requested by a party who is in a superior economic position to that of his or her future spouse. If your fiance has asked you to sign a premarital agreement, you can rest assured that he or she is doing so because in the unfortunate event of a divorce, your future spouse is hoping to leave you with less than you otherwise would be entitled to without a premarital agreement. One popular scenario in which premarital agreements were often times drafted involved an individual going into a second marriage with children from his first marriage, who acquired substantial wealth which he did not wish to share with his fiancé in the event of a future divorce. The older gentleman might insist that the premarital agreement contain language stating that his current assets, as well as the increase in value to his current assets, and any other assets acquired with his money during the marriage would all remain his non-marital property. The agreement might have offered an agreed dollar amount at the time of any future divorce.

Today premarital agreements fall into many different categories including the following:

  1. Two young individuals with an equal amount of assets;
  2. Two young individuals, one with substantial wealth and the other without wealth;
  3. An older individual with substantial wealth, and a young individual without wealth;
  4. Two older individuals, one with substantial wealth and one without wealth; and
  5. Two older individuals with equal amounts of wealth.

The answer to the question posed by the title of this article is yes, premarital agreements in Illinois are enforceable, but they must be prepared under appropriate circumstances. The starting point is the Illinois Uniform Premarital Agreement Act (750 ILCS 10/1- et seq.) The Illinois Uniform Premarital Agreement Act allows parties to limit the amount of assets or maintenance (formerly referred to as “Alimony”) that the wealthy spouse pays upon divorce. If you are interested in negotiating a premarital agreement which would be upheld in an Illinois court, you would be wise to follow a few important tips:

  1. Be prepared to fully disclose 100% of your net worth including a list of all assets and their approximate values;
  2. Have your attorney draft the premarital agreement as far in advance of the wedding date as possible, and then have the agreement signed well in advance of the wedding date;
  3. Insist upon your fiancé hiring his or her own attorney to negotiate the terms of the agreement with your attorney.

Following these three steps goes a long way towards solidifying the enforceability of your agreement, should it ever be challenged in court at the time of an eventual divorce proceeding.

If you happen to be the individual being asked to sign a premarital agreement, do not hesitate to instruct your attorney to vigorously represent your interests, which may include making demands that provide for your financial security in the unfortunate event of a divorce.

Knowing these simple rules, one wonders what the attorneys for Barry Bonds could have been thinking when his premarital agreement was drafted and signed more than ten years ago?

Contact the Law Offices of Michael P. Doman, Ltd. for your divorce attorney needs.