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b2ap3_thumbnail_Prenuptial-Agreement2_640.jpgA significant number of couples in this day and age execute premarital agreements—also called prenuptial agreements—to help settle any potentially thorny issues before their marriage. However, not every premarital agreement can be implemented as written. Some provisions are contrary to existing laws, and some are contrary to what is referred to as public policy. It can be more difficult to establish that something is against public policy, but it can be done, and if an agreement is found to violate public policy, it may be declared void.

Defining Public Policy

Public policy is defined as the principle or legal tenet that detracting from the “public good” is an event to be avoided. In other words, if an action shocks the conscience or the sensibilities of the general public, it is generally to be avoided because the public should be protected from injury if possible. This commonly comes up in issues of divorce and child custody, though public policy questions may appear in many different legal arenas. In Illinois, the Uniform Premarital Agreement Act governs such issues in regard to prenuptial contracts.

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b2ap3_thumbnail_prenuptial-agreement6_640.jpgIn this day and age, more and more couples are signing prenuptial agreements before they wed to safeguard their own interests if the marriage fails. The mere act of creating a document like a prenuptial agreement is not sufficient to ensure its validity, however; certain provisions in the document can actually render the entire agreement null and void. Doing some research can help ensure that yours remains valid.

A Change in Property Distribution Rules

While prenuptial agreements—also known as prenups—have become more popular in general, Illinois law has helped contribute to a specific uptick in their use. Before the substantial reforms to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) which took effect in January of last year, property purchased “in contemplation of marriage” was normally held to be marital property and, therefore, subject to the state’s equitable distribution laws. After modification, this was changed significantly, with the law holding that just because property was purchased or received in contemplation of marriage, it did not make that property marital. Thus, a private agreement is often necessary in order to equitably distribute such property.

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b2ap3_thumbnail_prenuptial-agreement4_640.jpgWith many Americans waiting longer than ever before to get married for the first time and the rise in the rate of second and third marriages, prenuptial agreements have become increasingly common across the country. You may be wondering what age and remarriage have to do with prenuptial agreements, and the answer is relatively simple. Those who get married at a later age—those getting married for the second or third time are older than they were when they first got married—tend to bring more with them into their new marriage. “More” refers to not only property and debts but also to children, previous spousal maintenance obligations, and other concerns.

With all of the potential considerations, it makes sense that individuals considering marriage would look to protect themselves by drafting a prenuptial agreement. If it is not executed properly, however, your prenuptial agreement may not stand up to challenges in court, making it essentially unenforceable and leaving you possibly unprotected.

The most common reasons that a divorce court court set aside a prenuptial agreement include:

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