A prenuptial contract can allow a couple to establish clear expectations for one another as they begin their marriage. While many people view prenuptial contracts disdainfully, believing they indicate a lack of faith that a marriage will last, the reality is that prenuptial agreements are practical and valuable choices for many marrying couples. This is especially true for people who have prior financial obligations from past marriages or those who own complex assets.

If you think a prenuptial contract is suitable for your situation, it is essential to understand how these agreements work, what they can include, and how to ensure you can rely on it in the future. Enforceability is a significant concern when it comes to prenuptial contracts. If you ever believe that you need to refer to your prenuptial contract in a legal capacity, you want to know that it is valid.

Why Do People Create Prenuptial Contracts?

A prenuptial contract is a formal legal agreement between couples that establishes their financial rights and responsibilities in their marriage. Prenuptial contracts may be customized in several ways. For example, a person may want to have a prenuptial agreement drawn up to preserve the inheritance rights of their children from a prior marriage. Marrying spouses may also wish to maintain separate finances and protect themselves from one another’s debts. Ultimately, people create prenuptial contracts for many reasons, but the common threads are typically financial protection and creating a blueprint for a future divorce if they decide to end their marriage.

What Makes a Prenuptial Contract Unenforceable?

A prenuptial agreement is a formal legal contract. The contract must meet specific criteria to qualify as legally enforceable, meaning it will hold up against legal scrutiny should the signing parties ever need to refer to it in any official capacity. Enforceability of a prenuptial agreement largely hinges on the conditions under which the agreement was first signed.

To be enforceable, a prenuptial contract must not include any illegal or unconscionable terms. Both parties must be of sound mind and have the capacity to understand what they are signing. A prenuptial contract is unenforceable if:

  • Either party is threatened or pressured by undue coercion into signing the contract.
  • Either party is under the age of 18 when they sign the contract.
  • Either party commits any fraud or misrepresents any aspect of the material covered in the contract.

If any of these issues apply to a prenuptial contract, the contract is legally unenforceable. It is also possible for a prenuptial contract to be legally valid at signing but to have factors arise later that require the signing parties to revisit the contract and adjust it.

Something in My Life Has Changed. Can I Edit My Prenuptial Contract?

One of the most important aspects of prenuptial contracts is the need to adjust them over time. Life can entail many unexpected events and changes, some of which could materially influence the elements of your prenuptial agreement. When something significant happens in your life, you need to consider whether the event has any bearing on your current prenuptial agreement. You and your spouse may need to revisit the agreement and adjust it to reflect your new circumstances.

This process is relatively straightforward and generally entails sitting down with your family law attorney and reviewing the changes your prenuptial agreement needs to reflect. Your attorney can help you determine the best adjustments to make to ensure your prenuptial contract remains legally enforceable and accounts for recent changes in your life.

What Happens If My Spouse Violates Our Prenuptial Contract?

Prenuptial contracts outline spouses’ rights and responsibilities in their marriage. These contracts include the terms for appropriate behavior as well as penalty clauses when a spouse violates the terms of a prenuptial agreement. If your spouse has done something to violate the terms of your agreement, you may need to decide whether this behavior is enough to justify ending your marriage or invoking the penalty clauses of your prenuptial agreement.

Some minor violations may be handled privately between the spouses. They may discuss the issue and decide to edit their prenuptial contract based on the event, or the violation may be severe enough for one spouse to want a divorce. Most prenuptial agreements will include postnuptial clauses that refer specifically to divorce, and these postnuptial agreements will almost always relate to penalty clauses included in the contract. Ultimately, if a spouse who has signed a prenuptial agreement violates that agreement in any way, they will face some type of consequences for this behavior, up to and including divorce in some cases.

Do I Need a Lawyer to Write My Prenuptial Contract?

Although it is technically possible for you and your spouse to write up your prenuptial contract without the assistance of an attorney, it is generally best to have an experienced family law attorney help you draft your prenup. If you draft it alone, you may overlook important details or mistakenly include unenforceable terms. Your attorney can guide you through the prenuptial contract creation process, helping you ensure that the contract suits your needs and preferences and meets all criteria for legal enforceability.

Many people make the mistake of assuming prenuptial contracts are only for wealthy people or people marrying for a second or third time who need to ensure financial protection for their children from previous marriages. Any couple can potentially benefit from drafting a prenuptial agreement, and in many cases, a couple will discover that negotiating their contract before marrying improves communication between them and brings them closer. Instead of navigating complex financial issues in the future and discovering one another’s preferences and expectations over time, the couple can effectively put everything on the table at the outset of their marriage and build the groundwork for more effective communication in marriage.

If you believe a prenuptial contract would suit the best interests of you and your spouse-to-be, it’s a good idea to consult an experienced Metro East, IL, family law attorney as soon as possible. Your attorney can help you understand the benefits a prenuptial contract can provide both of you and guide you through the drafting process.