If you’re thinking about getting a prenup in Illinois, congrats! Smart move. Prenups are an awesome tool to not only protect financial interests but also align you and your future spouse on important topics like retirement, bank accounts, etc. But in order to create a valid and enforceable agreement, you must follow your state’s prenup laws. For example, do you need a lawyer to have a valid prenup?
Is a lawyer required for a valid prenuptial agreement in Illinois?
No, lawyers are not required for a valid and enforceable prenuptial agreement in Illinois. However, if the prenup is ever challenged by either party during a divorce, a court may look at whether each party had the opportunity to hire a lawyer (i.e., having the time and resources) in determining whether to set aside the agreement or not. Having a lawyer is one of the best ways to show that each party understood the terms they were signing and voluntarily entered into the agreement. It is hard to argue that you didn’t know what you were signing or didn’t want to enter into the agreement when you had a legal advocate on your side, advising you along the way.
Will a valid prenup always be enforced by an Illinois court?
Think of enforceability as a sliding scale. A prenup drafted and signed without lawyers is valid, but it is at the lowest on the sliding scale of enforceability if ever challenged in a divorce. Was there only one lawyer representing one fiancé and ample opportunity for the other fiancé to get legal advice before signing the prenup? If yes, then that is higher up on the enforceability scale. Were both fiancés represented by lawyers? If yes, then that prenup is most likely to be enforced if challenged in court. How likely to be enforced you want your prenup to be is up to you and your fiancé’s risk tolerance.
At the end of the day, the prenup is there to make sure you are not fighting over things in a divorce, so this lawyer thinks it is worth it to have the most enforceable prenup possible where each fiancé hires an attorney. The great thing about HelloPrenup is that all three options are available to you, and they help facilitate meeting a lawyer for each fiancé.
Case law shows Illinois courts may uphold a prenup despite a lack of counsel
In Sokolowski v. Sokolowski (1992), the Illinois appellate court addressed whether the lack of independent legal counsel invalidated a prenuptial agreement signed by the wife. Although the wife argued the prenuptial agreement was unenforceable because she did not have an attorney, the court upheld the agreement, emphasizing that Illinois law does not require legal representation for a valid prenuptial agreement. The court in this case found that the wife had voluntarily drafted and signed the agreement herself, without coercion, and primarily for the purpose of securing marriage and legal residency. Despite her not having a lawyer, the court held that her personal decision not to seek legal advice (particularly since she initiated the agreement) did not render it invalid under Illinois law.
Can only one person hire a lawyer for a prenuptial agreement in Illinois?
Yes, it is possible for only one person to hire a lawyer and not the other, and have the agreement hold up in court. However, it is still best practice for both partners to have their own attorneys to reduce any likelihood of future arguments down the road that either party didn’t have an understanding of the terms or didn’t enter into the agreement voluntarily. Plus, some attorneys may refuse to represent clients where their partner does not have representation because of liability issues (though not all!).
Can one person pay for the legal fees of the other person for a prenup?
Yes, one partner can pay for their partner’s legal fees without getting the prenup thrown out. Just because one party paid for the other’s attorney to get a prenup does not (by itself) signify any bad actions by the paying party. The person receiving financial help should have an adequate opportunity to find their own lawyer and should not be forced into one particular attorney by the other spouse. For example, an Illinois court dealt with this exact issue in 2018 in In re Marriage of Woodrum (2018). The court upheld the prenup even though the husband’s family business paid for the wife’s prenup attorney. The court explained that the wife had the opportunity to seek independent counsel of her choosing and enough time to review the agreement. Plus, lawyers are not required for a valid and enforceable agreement in Illinois, so having an attorney at all is an added bonus.
Can we share a lawyer for a prenup in Illinois?
No—it’s generally against the rules of legal ethics for one attorney to represent two parties to a prenuptial agreement since the parties have directly opposing interests. It’s like the lawyer trying to play tennis against themselves, serving and returning on both sides of the net—it just doesn’t work and creates a conflict of interest. For example, imagine a couple where one partner would benefit from waiving spousal maintenance and the other is not. How could the same attorney advocate for both parties’ rights at the same time? It would be difficult. Each partner should hire their own attorney. And if only one person hires an attorney, then the other person should be aware that this attorney doesn’t represent them.
Do we need lawyers if we’re using an online prenup?
Hiring lawyers is not a legal requirement for a prenup in Illinois, but it can still be beneficial to hire an attorney to review your online prenup. Hiring a lawyer to review your online prenup can provide you with peace of mind that the agreement is tailored to your needs, state-compliant, and enforceable. For example, if you use HelloPrenup, you can hire Illinois prenuptial agreement attorneys directly through the platform for exclusive, flat rates. These attorneys can make small edits to the prenup for you, explain the terms to you, and answer your legal questions, giving you the ultimate peace of mind!
Can you write your own prenup and have it notarized in Illinois?
Yes, it is possible to write your own prenup and have it notarized in Illinois. Again, there is no strict legal requirement necessitating that a lawyer write your prenup. You can technically write it yourself (as long as you follow all the rules for a valid agreement) and also have that document notarized. Notarization is the act of having an agreement acknowledged by a registered Notary Public. The Notary Public will then witness your signatures on the document and also apply their signature and seal. It’s a way to show the court that the agreement was actually signed by each party and limit arguments of fraud.
The bottom line on lawyer requirements in Illinois
As you can see, hiring a lawyer is not required for a valid and enforceable prenup in Illinois. However, each party should have the opportunity to hire one if they want to (and not be coerced into signing the agreement without one). While both parties should not share the same prenup attorney, it’s generally acceptable for only one person to have a lawyer, provided the agreement is entered into voluntarily and without fraud, coercion, or unconscionable terms. In other words, yes, you can draft and notarize your own prenup in Illinois—just be sure to follow the legal requirements to ensure it holds up. Happy planning!
Mathew Kerbis is The Subscription Attorney. He helps people and business owners with their daily and ongoing legal needs. As part of his service to clients, he helps them plan for marriage with premarital agreements, a/k/a prenups. Mathew is a proud member of the HelloPrenup attorney network where he has agreed to affordable fixed fee pricing for HelloPrenup clients without needing to subscribe to his law firm.
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