There was a time when many thought prenuptial agreements were only for rich celebrities or those who did not have faith in the longevity of their marriage. Today, people realize that prenuptial agreements are not only vital assets in the unfortunate event that a couple splits up or a spouse passes away, but are also tools which can help married couples manage their financial responsibilities while they are still married as well. When creating a prenuptial agreement, one must be careful to draft it in such a way that it holds up in court. Making certain mistakes within a prenuptial agreement can cause it to be considered invalid. In this case, the mandates set forth in the document will not be followed and the document will have been created in vain.

Dishonesty Regarding Assets

One of the major requirements of a valid prenuptial agreement is total transparency with regard to all assets, properties and debts. If a person enters into a prenuptial agreement but does not disclose all of his or her financial information or attempts to hide assets, the document may become useless. If a couple is divorcing and one spouse proves that the other was fraudulent in his or her financial reporting, the prenuptial agreement cannot be used to make decisions regarding spousal maintenance, property division, or family-owned businesses.

Prenuptial agreements (also called premarital agreements or "prenups") are legal contracts that are signed by individuals before they get married. The purpose of a prenuptial agreement is to establish the property and financial rights of each spouse in the event of a divorce. Prenuptial agreements can help protect a person’s assets and property and may also help determine how spousal support or alimony is awarded. Prenups can define what property is considered marital and what is separate.

It can be uncomfortable to bring up the subject of prenups with a person’s soon-to-be-spouse. No one wants to believe that their marriage will end, but sadly, many do. It is important to plan for the worst case scenario even if the couple currently has a strong relationship. As the saying goes, it is better to be safe rather than sorry.

Who Needs a Prenuptial Agreement?

In recent years, an increasing number of couples have chosen to execute prenuptial agreements, or prenups, before their marriages. There are many different reasons for you and your potential spouse to consider a prenup, but all such agreements have the potential to be declared invalid if they are not drafted properly. If you want to be certain that your prenuptial agreement will pass legal muster, there are some things you should know.

Only Certain Issues Can Be Discussed

The major issue that many couples encounter with prenups is trying to address concerns that, by law, cannot be settled until they become relevant, with child support and parenting time being the most common. Illinois prenups are governed by the Illinois Uniform Premarital Agreement Act (UPAA), and it contains a specific list of items about which the parties may contract, including the right to dispose of assets, the right to continue certain arrangements from the agreement in a will or trust, and “any other matter … not in violation of public policy.” Child support is perhaps the most paramount of these.

By now, you may have heard that actress Amber Heard is filing for divorce from actor Johnny Depp after just 18 months of marriage. Divorce filings are so common in Hollywood that, often, these cases barely warrant a mention, but one twist in this case is worth pointing out: the couple apparently did not have a prenuptial agreement.

That might not be a big deal if the couple had similar net worths, but in this case, Depp is estimated to be worth $400 million, while Heard’s net worth is thought to be around $9 million. Under California law, Heard is unlikely to wind up with hundreds of millions of dollars from the divorce settlement, but she could be entitled to a good amount of money that Depp made during the period they were married. Conceivably, she could receive tens of millions of dollars just for being married to Depp for less than two years. If nothing else, it shows the importance for high-net worth individuals of getting a prenuptial agreement before walking down the aisle.

Prenuptial Agreements in Illinois

As unromantic as it may sound, a marriage can be compared to a contract, with two people coming together and agreeing to form a partnership under certain terms. In some cases, when couples are contemplating marriage and even after they are married, they may enter into additional agreements to ensure their financial interests are secure in the event of a divorce. There are many reasons why couples may choose to enter into these prenuptial and postnuptial agreements, and there are numerous other concerns that they have to keep in mind when executing them. One important aspect of both kinds of agreements is the legal need for all parties to be aware of the assets at stake.

Financial disclosures are a key requirement in determining the enforceability of a prenuptial agreement. One of the elements a court looks at in determining that the contract is enforceable is if the party challenging the agreement was provided with a fair and reasonable disclosure of the other party’s assets or financial obligations. While there may later be a disagreement as to what constitutes a fair and reasonable disclosure, it is safe to say a complete disclosure of all assets owned, even partial interests, and all debt owed would satisfy this requirement. Often, the financial disclosure submitted by each party is attached to the prenuptial agreement as an exhibit or addendum to avoid questions of what was and what was not disclosed later on.

With postnuptial agreements, financial disclosure can be just as important. A couple that agrees to sign away rights to property or other assets after they are already married should not assume that they know what they own individually or jointly. If one person suggests a postnuptial agreement, each party should seek a complete financial disclosure of all assets, even those that may be considered premarital property. Having an accurate picture of all the assets and debts at play can affect the negotiations that take place. In agreeing to distribute property a certain way after the marriage, parties should also remember that a court would still look to see if the agreement was unconscionable. If either party fraudulently misrepresents their financial assets, shields marital assets, or misrepresents their intentions in order to get the other to agree to an unequal financial distribution, a court is likely to find the agreement unconscionable.