Under Illinois law, a marriage or civil union creates certain rights and responsibilities between the parties to it. When a marriage or civil union ends, either by a court dissolving the marriage or union or by the death of one party, the rights and responsibilities each party has to the other must be addressed. Having a prenuptial or pre-civil union agreement can allow you to decide in advance what your rights and obligations will be to the other party.
The rights and obligations the parties have to each other when the marriage or civil union ends, can include the following:
- The right to receive, upon the death of the other, no less than one-third of the probate assets of the deceased party;
- The right to receive, upon the death of the other, a surviving spouse or partner award from the deceased's probate assets;
- The right to receive or the obligation to pay support or maintenance to the other party upon the dissolution of the marriage or union;
- Upon dissolution, the right to receive a portion of the assets or property acquired by the parties during the marriage or union.
- The obligation to pay a portion of the debts incurred by the parties during the marriage or union; and
- The right to receive a surviving spouse or surviving partner benefit from the other's retirement benefit.
With the prenuptial or pre-civil union agreement, the parties can decide what will happen with their property in the event of a divorce, dissolution, or death of the other. The parties can determine in advance what property will be treated as jointly owned marital or civil union property and what property will be considered and remain the sole property of one party. The parties can decide whether there will be any obligation to pay support to the other party. The parties can decide whether each will have any right to inherit property from the other.
To be legally enforceable, the Agreement must be in writing and signed prior to the marriage or civil union. The Agreement must be signed voluntarily. Each party must make a full and complete disclosure to the other of their finances, assets, and debts.
It is best for each party to have an attorney review and negotiate any Agreement. Not only can your attorney fully explain the Agreement to you, but also it may prevent the Agreement from later being contested due to claims of fraud or coercion by one party.