Not every marriage ends happily. In instances where a married partnership dissolves prematurely, the terms of the separation agreement can be onerous for one of the two parties. A prenuptial agreement is often a valuable bulwark against such financial losses that add to the emotional damage of a divorce. However, it’s important to understand that while often quite useful, a prenup is by no means a magical document that allows one party to fully dictate the terms of a divorce, should that come to pass. While a prenup can entail many financial issues pertaining to a marriage, you should be aware of what prenuptial agreements cannot include before attempting to draft an agreement with your attorney.
Accounting for the possibility of divorce and preparing for the inevitability of divorce are two very different ideas—especially when the preparations for an inevitable divorce would seem to reward that outcome. While public opinion has become much more forgiving toward divorce in recent years, the opinion of the court is still that marriages are meant to last. Judges scrutinize prenuptial agreements, and any section of the prenup that would seem to encourage divorce by providing financial incentives for doing so would be invalid.
Child custody battles can be the most emotionally grueling aspect of a divorce. One can understand why an engaged couple would attempt to preempt such an acrimonious dispute by attempting to lay out a plan for custody and visitation rights in case of divorce. Prenuptial agreements in Illinois cannot include this provision. Determination of child custody and visitation falls under the jurisdiction of the family court, not the parents, and the court is loath to waive that responsibility. Even in situations where divorcing couples seek an alternative dispute resolution to avoid litigation, a judge must approve a plan based on the conditions at the time of the divorce. There is no way to account for such issues so far ahead.
Paying alimony after a divorce is precisely what many people in marriages attempt to avoid in drafting a prenuptial agreement, but to no avail—forfeiture of alimony rights is chief among what prenuptial agreements cannot include in most states. Judges will heavily scrutinize any provisions pertaining to spousal support, particularly at either extreme. Prenups that attempt to get one spouse to forfeit any claims to alimony are likely to be deemed invalid. Conversely, a prenup that specifies disproportionately high alimony payments appears to incentivize divorce, which is another unacceptable provision.