Years after signing a prenup, you discover during divorce that the agreement does not address certain assets, such as an investment account, a business you owned before marriage or property acquired during the marriage.
How will the court treat these assets? In general, the court will fall back on state law.
Is the property part of the marital estate?
Assets omitted from a prenuptial agreement are not all treated the same way. If your prenup does not address a certain asset, the first thing that has to be determined is whether it is marital property or not. If it’s determined to be marital property, it will be divided equitably under Illinois’ equitable distribution laws.
Non-marital property that’s not included in a prenup generally remains with the spouse who owns it. That being said, it’s not always straightforward. Some initially non-marital assets may still be subject to division if they become commingled with marital assets during the marriage.
For example, suppose you owned a house before getting married but used income earned during the marriage to make mortgage payments or carry out substantial improvements. The house may remain your non-marital property, but your spouse may be entitled to a portion of the property’s value attributable to those marital contributions.
Protecting your property rights during a divorce in Illinois
Carefully drafting a prenuptial agreement with professional assistance can help ensure valuable assets are properly addressed and reduce the risk of disputes down the road. If you discover a gap in your prenup during divorce, reaching out for legal guidance can help you understand how Illinois law applies to your situation and what options may be available to protect your property rights.