A prenuptial agreement, often called a prenup, is a written contract a couple signs before they marry that sets out how certain financial matters will be handled if the marriage ends or one spouse dies. Illinois and Indiana both use the legal term “premarital agreement,” and both states have adopted a version of the Uniform Premarital Agreement Act. For many couples, a prenup is less about expecting problems and more about having an open, honest conversation about money, property and family before the wedding.
What a prenup is (and isn't)
Under the Illinois Uniform Premarital Agreement Act, a premarital agreement is an agreement between prospective spouses made in contemplation of marriage. It must be in writing and signed by both people. It takes effect when the marriage happens, and it does not need an exchange of money or other “consideration” to be valid. Indiana's version of the act appears in Indiana Code chapter 31-11-3.
A prenup is not a sign of distrust, and it is not only for wealthy couples. It is also not a substitute for an estate plan, and it cannot decide everything. It is one tool that lets two people decide in advance, together, what they want rather than leaving those decisions to default state rules.
What a premarital agreement can and can't cover
In Illinois, section 4 of the Act allows the parties to contract about matters such as:
- Their rights and obligations in property each of them owns, wherever it is located
- How property is divided on divorce, separation or death
- Spousal support (maintenance)
- Wills, trusts and similar arrangements to carry out the agreement
- Other personal rights and obligations, as long as they do not violate public policy
The most important limit is children. A child's right to support may not be adversely affected by a premarital agreement. Child support and parenting decisions are still decided by a court based on the child's needs and best interests, no matter what a prenup says. To see how those numbers work, read our guide to how child support is calculated in Indiana and Illinois.
Because Indiana and Illinois each have their own statutes and court decisions, the details can differ. If you live in one state and plan to marry or own property in the other, it is worth getting advice on which state's law is likely to apply.
When it makes sense to get one
Every couple's situation is different, but these are common reasons people ask us about a prenup:
- One or both of you owns a business or a share in one, and you want to keep it protected.
- Significant assets, savings or real estate that each of you brings into the marriage.
- A second marriage or children from a prior relationship, where you want to protect what you plan to leave to them.
- Debt, such as student loans or business loans, that one spouse does not want the other to be responsible for.
- Expected inheritances or family property you want to keep in the family.
- Career or education decisions, such as one spouse pausing work to raise children or support the other's training.
If you work in a demanding career, such as first responders and healthcare workers we serve, a prenup can also fit into a wider plan that includes estate planning, beneficiary designations and guardianship wishes.
How to help a prenup hold up in court
An agreement is only useful if a court will enforce it. In Indiana, under Indiana Code 31-11-3-8, a premarital agreement is not enforceable if the person challenging it did not sign voluntarily, or if the agreement was unconscionable (grossly unfair) when signed and that person did not receive fair disclosure of the other's finances. Section 7 of the Illinois Act likewise sets out when an agreement is and is not enforceable. Indiana courts apply these rules case by case, as in Fetters v. Fetters.
In practical terms, the steps that usually matter most are:
- Start early. Signing days before the wedding can look like pressure. Several weeks or months is far better.
- Share complete financial information. Each person should list assets, income and debts honestly. Hidden or inaccurate information is one of the most common ways an agreement gets challenged.
- Use separate attorneys. One lawyer cannot advise both sides. Each person should have their own counsel so that each understands what they are signing.
- Keep terms fair and clear. An agreement that is extremely one-sided is more open to challenge. Plain language reduces later disputes about what it means.
- Put it in writing and sign it properly. Both people must sign, and it only takes effect on marriage.
- Review it after big life changes. A new business, a move, or the birth of a child may be reasons to revisit your plans.
No attorney can promise how a court will rule on any agreement. Careful preparation is what gives you realistic expectations and the strongest footing.
Already married? Postnuptial agreements
If you are already married, you may be searching for a postnuptial agreement (sometimes written “post-nuptial”). A postnuptial agreement is a written agreement between spouses, made after the wedding, about how property, debts and other financial matters will be handled. Couples consider them after a business is started, an inheritance arrives, or when they want to reset expectations and avoid a divorce.
The premarital agreement acts discussed above apply to agreements made in contemplation of marriage, so agreements between spouses are not governed by exactly the same rules. The details of what a court will enforce depend on the state and the facts, and the same principles of fairness and full financial disclosure remain important. If this is you, talk with an attorney before you sign anything. If a marriage is already ending, our divorce attorneys can explain how property is divided, and our guide on why you need to know what assets are worth is a helpful starting point.
How First Response Legal helps
If you are looking for a prenup attorney or a Chicago prenuptial agreement lawyer, we can help you work through the process with clarity, preparation, and responsive representation. We serve Northwest Indiana and the Chicagoland area from our Hammond and Chicago offices, and we offer service in Spanish (Se habla español). A typical engagement includes:
- A consultation to understand your goals, your assets, and what you want to protect
- Explaining the rules that apply in Illinois or Indiana in plain language
- Drafting or reviewing the agreement and pointing out terms that could cause trouble later
- Coordinating with the other person's attorney, and planning a realistic timeline before the wedding
- Connecting the agreement to your estate plan when it makes sense
Common questions about prenuptial agreements
Do I need a prenup if we don't have much money?
Not necessarily. But a prenup can also address debt, a future business, family property or support expectations, so it is worth a conversation even if your assets are modest today.
Can a prenup decide child custody or child support?
No. A child's right to support cannot be adversely affected by a premarital agreement, and courts decide parenting issues based on the child's best interests.
Can we sign a prenup right before the wedding?
The law requires a signed writing, but signing at the last minute can raise questions about whether it was voluntary. Starting early is safer for both people.
Can a prenup be changed later?
Spouses can usually discuss changing an agreement together, but changes should be in writing and reviewed by an attorney in your state.
Questions about a prenuptial or postnuptial agreement? Request a consultation and speak with an attorney about your situation. Learn more about our family law services.
Sources and further reading
- Illinois Uniform Premarital Agreement Act (750 ILCS 10), Illinois General Assembly
- 750 ILCS 10/4: Content of premarital agreements, Illinois General Assembly
- 750 ILCS 10/7: Enforcement of premarital agreements, Illinois General Assembly
- Indiana Code 31-11-3-8: Enforceability of Agreement, Justia (Indiana Code)
- Fetters v. Fetters (2015), FindLaw (Indiana Court of Appeals opinion)
This article is for general information and is not legal advice.