While it has become more common to have them, the truth is that not every couple needs a prenuptial agreement—also referred to as a prenup—at least not in Illinois. Some couples or individual partners insist, but in many cases, there is not enough between the two people to warrant a careful, item-by-item disposition, which is often what a prenuptial agreement turns out to be. However, a prenup can be beneficial under some circumstances, and it is a good idea to consider whether it might be right for your marriage.
Do You Have Extensive Assets?
As one might imagine, couples with significant assets individually or between them will benefit from a prenuptial agreement in multiple ways. Perhaps the most common is in dealing with property division issues during divorce proceedings. Illinois adheres to the theory of equitable distribution, meaning that all marital property is divided in the most equitable or fair way possible, rather than giving each spouse half, as might happen in a community property state. A prenuptial agreement is one of the easiest and most common ways to clarify whose assets are whose before the marriage, meaning that all the specified assets can be classed as non-marital property, and thus likely not subject to division.
Another way prenups can help those with extensive holdings is to provide a way to track assets that become commingled with marital property. If you had a certain sum of money before the marriage, listing it in a prenup may help you retain it in divorce, even if it would normally be considered marital property as a result of commingling or use to benefit the marriage. Some couples are agreeable to such assets becoming marital property, but if you would rather retain them, mentioning them in a prenup may be enough to accomplish that goal. The divorce court does have the discretion to deny that provision if it puts your partner at an undue disadvantage, however....