Prenuptial or postnuptial agreements can be excellent tools for married couples. These agreements can accomplish legal tasks such as designating separate property for each spouse, predetermining how property is to be divided in the event of a divorce, and even requiring each other to create an estate plan naming the other as a beneficiary. However, there are certain clauses that are prohibited in these agreements. Even if both parties willingly agree to a clause, the clause in question may not be enforced if it is statutorily prohibited or would have certain unlawful effects in application. Although other parts of the prenuptial agreement may be enforced, the prohibited clauses are highly likely to be stricken from the contract at the judicial level.
It is advisable for each person who is contemplating entering a prenuptial agreement to have independent legal representation. An attorney can guard your interests during the process of developing and drafting this important legal contract.
Clauses You Cannot Agree to in Your Prenuptial Agreement
It is good practice to assess each clause not only patently as it is written, but in regard to the potential latent effects that may arise during enforcement. Prohibited terms in an Illinois prenuptial or postnuptial agreement may include:
- Provisions affecting a child – Parents may not enter into agreements that would prevent a child from receiving support from either parent where the parent would normally be legally required to provide support. Spouses may not agree to waive or reduce child support, nor may they predetermine a parenting plan in the event of the divorce. All such issues related to parenting time and the allocation of parental responsibilities must be decided at the time they arise in favor of the child’s best interests.
- Unconscionable hardship – If a provision related to the division of marital property or waiving spousal maintenance one spouse would normally be entitled to would create extreme hardship for one spouse, such as by rendering them likely to become unable to meet their basic needs, the clause is not likely to be enforced.
- Criminal statute violations – If enforcing a clause would cause a criminal statute to be violated, the clause is not legal and cannot be enforced. For example, spouses may not make agreements pertaining to an illegal business venture such as the sale of illicit substances.
It is best to have your prenuptial agreement drafted by a knowledgeable attorney in order to ensure that each component of the agreement is likely to be later enforced.
Contact a DuPage County Prenuptial Agreements Attorney
Law Office of Martoccio & Martoccio is skilled in drafting prenuptial agreements that can be relied upon for later enforcement. Our experienced Hinsdale prenuptial agreements lawyers will strive to guard your interests throughout the process. Contact us at 630-920-8855 for a free consultation.