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How to Ensure Your Prenuptial Agreement is Upheld and Enforceable in Illinois

By Corri Fetman | August 16, 2023

What Issues Affect the Validity of a Prenuptial Agreement?

Since a Prenuptial Agreement serves as a legal contract between spouses, the terms of a Prenuptial Agreement will generally be followed, as long as they are legally valid. However, there are issues that may affect the enforceability of a Prenuptial Agreement:

  • Unconscionability – An unconscionable Prenuptial Agreement is one that is extremely unfair and one-sided. Illinois may allow for a Prenuptial Agreement to be unenforceable if it is so one-sided that it creates an unfair advantage for one spouse, such as by stating that one spouse will receive the vast majority of the couple’s assets in the event of a divorce and it leaves a spouse in a penurious condition. However, a Prenuptial Agreement may also be invalidated on the grounds of unconscionability if one party was not provided with a reasonable disclosure of the other party’s financial circumstances, including their assets, values and corresponding debts. This will not apply if a person waived their right to receive a financial disclosure, or if they reasonably should have had adequate knowledge of the other party’s assets and liabilities, a party may not be able to succeed in contesting the Prenuptial Agreement by claiming it is unconscionable.
  • Involuntary execution – A Prenuptial Agreement is valid if both parties signed the agreement voluntarily. In some cases, a spouse may contest a Prenuptial Agreement by claiming that they signed the agreement due to coercion or duress. By way of example, a party may claim that they were threatened with physical or financial harm by the other spouse or that unfair tactics were used to coerce them into agreeing to a Prenuptial Agreement. When determining whether a Prenuptial Agreement was signed voluntarily, courts may look at whether a person was given enough time to properly consider an agreement and consult with an attorney to make sure they fully understood the terms and provisions of the Agreement. Taken to a logical extreme, if a party presented their partner with a Prenuptial Agreement on the day of their wedding and stated that they would not go through with the ceremony unless the agreement was signed, this is likely to be considered coercion. An agreement may also be found to be invalid if one of the parties was legally incompetent or did not have the mental capacity to fully understand the terms of the Agreement.
  • Provisions for spousal maintenance – When the Terms of a Prenuptial Agreement specify that one spouse is waiving the right to receive spousal support, there may be an argument that deems this provision to be unenforceable in certain situations. If the modification or elimination of alimony would cause undue hardship or a “penurious” condition for a spouse because of circumstances that neither party could have reasonably foreseen at the time they signed a Prenuptial Agreement, a court may choose to ignore these terms and award spousal support. For example, if a Prenuptial Agreement stated that spousal support would not be paid, but the spouse that waived maintenance was seriously injured during the course of the marriage and experienced a permanent disability, the court may still order for maintenance to the disabled spouse. 

Some Tips to Ensure that Your Prenuptial Agreement is Valid and Enforceable

If you are thinking about a Prenuptial Agreement, then the most important tip is to hire a qualified professional that specializes in family and matrimonial law. Your friend’s uncle that dabbles in divorce is not equipped to handle a prenuptial agreement. It is far wiser to spend money on a Prenuptial Agreement rather than spend thousands on attorneys’ fees, professional fees and costs in divorce court trying to fix a multitude of issues that could have been avoided in the first place. Here are some additional simple tips and tricks:

  1. Consult with an Attorney: Each party should have their own independent legal representation to ensure their interests are protected. This helps prevent any claims of coercion or lack of understanding later on.
  2. Full Disclosure: Both parties must provide complete and honest disclosure of their financial situations, including assets, debts, income, and liabilities. Failing to disclose relevant financial information can render the agreement unenforceable and cost thousands later on.
  3. Voluntary Agreement: The prenuptial agreement should be entered into voluntarily by both parties. There should be no signs of duress, undue pressure, or manipulation. It is best if the agreement is signed well in advance of the wedding to avoid any appearance of last-minute coercion.
  4. Written Agreement: Prenuptial agreements must be in writing to be valid in Illinois. Verbal agreements are not enforceable.
  5. Fair and Reasonable Terms: The terms of the agreement should not be excessively one-sided or unconscionable. Courts may invalidate an agreement if it’s deemed to be extremely unfair to one party.
  6. Separate Legal Representation: Both parties should have their own attorneys who can explain the legal implications of the agreement and ensure that their rights and interests are adequately represented.
  7. No Fraud or Misrepresentation: The agreement should not be based on fraud or misrepresentation. Both parties should fully understand the terms they are agreeing to and the agreement should state as such.
  8. Avoid Ambiguity: The language and schedules contained in the agreement should be clear and unambiguous. This helps prevent disputes about the meaning of certain terms later on. If one party is keeping property, it should be clearly identified on a schedule. Real estate should be identified with a PIN or legal description. If there is marital property, it should be set forth on a separate schedule and identified in detail. The definitions should be clearly detailed in the Prenuptial Agreement. 
  9. Consider a Professional Stenographer or Videographer to Record the Execution: This may prevent future disputes as to voluntary execution and other issues. 

Having a Prenuptial Agreement is a prudent step for most couples considering marriage.  However, it is essential to ensure that both parties fully understand how their Prenuptial Agreement will protect them and the role that it may play in a potential divorce. At Corri Fetman & Associates, Ltd, our attorneys can provide guidance for spouses who are considering these types of agreements, and we can ensure that a Prenuptial will be valid and legally enforceable. Contact us and schedule a consultation for assistance on your Prenuptial Agreement.

To inquire, contact our Prenuptial Agreement Divorce Lawyers that practice in Cook County, Kane County, DuPage and Lake County.

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