Does a prenup determine asset division in your divorce?

Before you got married, you did the sensible thing and made a prenuptial agreement with your beloved. You outlined separate and marital property and what would happen to it if you split up. You never thought you would have to use it, but, unfortunately, divorce is now part of the picture.

Part of the process includes asset division, a usually highly-contested aspect of divorce. Illinois follows equitable distribution, which means that you may not each get exactly half, but instead a proportion that is fair to each of your financial circumstances without factoring in any marital misconduct. How does your prenup change the way the courts approach your property?

How a prenup affects distribution

If you have already determined the division of your assets in a prenup, the court will go by the agreement instead of portioning them out on its own. However, unless you are getting divorced soon after your marriage or have recently made a postnuptial agreement, then your document probably does not cover everything. You have likely acquired and lost assets since the wedding date, as well as increased or decreased the value of others.

Furthermore, certain assets must follow federal or state laws regardless of how you agree to split them. Your soon-to-be ex, or even the court itself, may invalidate the prenup for one of the following reasons:

  • One spouse coerced the other into signing the prenup.
  • One or both spouses did not disclose all assets.
  • The prenup includes illegal or blatantly one-sided provisions.
  • You did not have legal representation when you drafted it.
  • You did not properly file the paperwork.
  • You made the agreement verbally instead of on paper.

Even if you followed all the correct steps, any unclear language can cause issues and lead to you losing or gaining more assets than the prenup states. With so many factors involved, a prenup is no guarantee property division will go as you planned, and it can work either for or against you.

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