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When are prenuptial agreements unenforceable in Illinois?

On Behalf of | Dec 19, 2021 | Firm News |

Couples in Illinois might, for a variety of reasons, decide that prior to getting married they want to draft a prenuptial agreement. While prenuptial agreements are often seen as a negative, in reality they can help a couple to protect themselves in the event that they choose to divorce.

Many people can benefit from having such an agreement in place, whether they have substantial portfolios or not. However, it can often be a problem when there is an attempt on the part of one of the spouses to claim that the agreement is unenforceable. Understanding the law when it comes to enforcement of a prenuptial agreement is imperative.

The prenuptial agreement – also referred to as a premarital agreement – will not be enforceable if a party did not take part in the agreement voluntarily. It will also be unenforceable if the agreement was considered unconscionable or unfair when it was executed and, prior to its execution the party: did not have a fair and reasonable disclosure of the property the other party had or the financial obligations the other party was facing; had not signed a voluntary written waiver of any right to have the property or financial obligations disclosed beyond what was provided; or did not have or could not reasonably have had a sufficient knowledge of the property held or financial obligations that the other spouse was responsible for.

If there is a provision in the prenuptial agreement that will modify or eliminate the spousal support and it causes undue hardship when there were circumstances that were not reasonably foreseeable at the time of the agreement, the court can require that the other party provide support so that the hardship can be avoided. The court will decide whether or not an agreement was unfair as a matter of law.

Prenuptial agreements can turn into contentious issues when a couple is getting a divorce. Having a grasp on what the agreement means before signing it is always the best option, but if there was an agreement signed and a divorce is in progress, it is important for the participants to have legal help with situations in which there is a dispute over the contents of the prenuptial agreement. When getting a divorce with a prenuptial agreement in place, having an attorney with experience in property division and other divorce issues is an important factor in resolving the case satisfactorily.

Source: Illinois General Assembly, “Premarital Agreements — Sec. 7. Enforcement.,” accessed on Feb. 16, 2016