Prenuptial agreements are a valuable tool for couples who want to protect their assets and set clear expectations before marriage. In Illinois, prenups are governed by the Illinois Uniform Premarital Agreement Act (IUPAA), which outlines what can and cannot be included in these agreements. While prenups offer significant flexibility, there are important limits to what they can address.

Here’s a breakdown of what you can and cannot include in your prenup—and why.

What You Can Include in Your Prenup

Prenups are primarily designed to address financial matters. In Illinois, couples can include provisions about:

  • Separate vs. Joint Property: Clarifying which assets remain separate and which become marital property.
  • Estate Planning: Ensuring children from prior marriages are provided for or preserving family property.
  • Business Ownership: Outlining how a separate business will be handled during the marriage or in the event of divorce.
  • Retirement Benefits: Addressing how retirement accounts and pensions will be divided.
  • Debt Responsibility: Specifying that one spouse will not be responsible for the other’s debts.
  • Spousal Support (Alimony): Setting terms for spousal maintenance, though courts may review this for fairness.
  • Tax Planning: Deciding how to file tax returns and allocate income or deductions.
  • Household Finances: Determining who pays bills, whether to have joint accounts, and how to manage them.
  • Major Purchases or Projects: Planning for joint investments like buying a home or starting a business.
  • Education or Career Support: Outlining financial support for one spouse’s education or professional development.
  • Dispute Resolution: Deciding how to handle disagreements, such as through mediation or private arbitration.

These provisions are generally enforceable as long as they comply with Illinois law and are entered into voluntarily with full financial disclosure.

What You Cannot Include in Your Prenup

While prenups offer significant flexibility, there are clear limits to what they can address under Illinois law. Here are some common examples of unenforceable provisions:

  1. Child Support and Custody Decisions
    • Not Enforceable: Any provision that predetermines child support, custody, parenting time, or parental decision-making.
    • Why? Illinois courts always prioritize the best interests of the child at the time of divorce. Parents cannot waive or set conditions on child support obligations.
  2. Waiving or Limiting Spousal Support (Under Certain Conditions)
    • Partially Enforceable: While a prenup can waive or limit alimony, a court may disregard this provision if it would leave one spouse unconscionably impoverished.
    • Why? If enforcing the prenup would result in one party becoming destitute or dependent on public assistance, the court can override it.
  3. Non-Financial Personal Matters
    • Not Enforceable: Provisions dictating personal behavior during the marriage, such as:
      • Frequency of intimacy
      • Division of household chores
      • Weight maintenance or appearance requirements
      • Rules about in-laws, social media, or religious upbringing of future children
    • Why? Illinois courts do not enforce lifestyle clauses, as they do not pertain to financial matters.
  4. Agreements That Promote Divorce
    • Not Enforceable: Any clause that provides financial incentives for divorce (e.g., a spouse receives a large payout for filing for divorce).
    • Why? The law does not allow provisions that encourage divorce or go against public policy.
  5. Waiving Rights to Retirement Benefits Without Proper Formalities
    • Partially Enforceable: While a prenup can address retirement benefits, federal laws (like ERISA) require a separate waiver signed after marriage for certain retirement accounts (e.g., 401(k)s, pensions).
    • Why? Some retirement benefits cannot be waived before marriage under federal law.
  6. Criminal or Unethical Provisions
    • Not Enforceable: Any clause that involves illegal activities or goes against public policy, such as:
      • Requiring a spouse to commit fraud
      • Penalizing a spouse for reporting abuse
    • Why? Courts will not uphold agreements that violate state or federal law.

A Note on Fidelity Clauses

A fidelity clause—which imposes penalties for cheating or infidelity—is generally unenforceable in Illinois. Courts view these provisions as overly intrusive and unrelated to financial matters.

The Bottom Line

Prenups are a powerful tool for protecting your financial future, but they must comply with Illinois law to be enforceable. If you’re considering a prenup, it’s essential to work with an experienced family law attorney to ensure your agreement is legally sound and tailored to your unique situation.

At Greenberg & Sinkovits, we’re here to help you navigate the complexities of prenuptial agreements. Let’s create a plan that works for you.