Prenup for a Second Marriage in Illinois: A Checklist

Remarrying involves navigating a financial reality that is often more involved than the one you faced in a first marriage, especially when you have existing family obligations or long-term assets to protect. If you skip creating a formal contract, the state's statutes regarding divorce and probate proceedings will determine the distribution of your property.

An Action Checklist for Your Second Marriage Prenup

1. Start the conversation months before the wedding. Begin your dialogue regarding these terms at least three months prior to your wedding date, with the goal of having the document finished and signed a few weeks before the big day. Having these honest talks early can prevent resentment later by ensuring financial expectations are clear before they become a point of contention.
2. Prepare a complete financial disclosure. Provide a comprehensive breakdown of every debt, income source, and asset, attaching these details to the agreement. Though the law does not force you to do so, providing a detailed list of what you owe and what you own is the best method to fulfill the duty of providing complete financial information, which can help ensure the contract remains valid.
3. Retain independent legal counsel. Hire separate lawyers. Although the law does not mandate that both parties hire individual representation for the contract to hold up, having separate legal counsel is a strong recommendation. This gives each person a neutral party to explain the agreement, which carries significant weight if the terms are ever questioned in court.
4. Define separate and marital property. You can use the document to verify that items like a business, house, or financial account held before the wedding remain your own. This is vital because, without such terms, separate property can accidentally become marital property through commingling, such as by putting an inheritance into a shared bank account or adding a spouse's name to a pre-wedding property deed.
5. Handle retirement accounts and debt allocation. You can specify that any pension funds or 401(k) amounts you held prior to the wedding remain your own, given that growth or additions occurring after the wedding date often become part of the divisible estate. You can also outline who remains responsible for specific loans or credit balances incurred before you married, so that one person’s liabilities do not dictate the other’s financial outcome.
6. Address spousal inheritance rights. Pursuant to 755 ILCS 5/2-8, which is part of the Illinois Probate Act, a surviving husband or wife has the power to reject the terms of a will and claim a specific portion of the estate—frequently one-third—if the deceased person left behind children or other descendants. You can include a waiver for this right, but you must also update your trusts, wills, and beneficiary forms so they match your intentions.
7. Clarify protections for children from prior relationships. While the Illinois Uniform Premarital Agreement Act (IUPAA) prevents a contract from dictating child support or custody arrangements, you are still able to use the document to secure financial goals for your children. You might agree to keep a specific life insurance policy in place for their sake or promise to waive potential claims against a trust established for them.
8. Sign the final agreement several weeks before the ceremony. Finalizing the document weeks prior to the wedding helps prove the decision was made freely; waiting until the last minute before the event can lead to claims that a party felt forced into the agreement because they lacked a real alternative.

For the full detail, including the exceptions, read the original article from our Chicago family law attorneys.

About the author

Michael Ian Bender is a founding partner of Caesar & Bender, LLP, a Chicago family law firm. He represents clients in divorce, including high-asset and high-net-worth cases, child custody and support, spousal maintenance and post-decree matters.

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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.