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What Makes a Prenuptial or Postnuptial Agreement Invalid in Illinois?

Posted on in Family Law

Kane County prenuptial agreement lawyersAlthough they are becoming more popular, only 5-10 percent of U.S. couples who marry draft prenuptial agreements. Once considered to be only for the wealthy, a prenuptial or postnuptial agreement can save a couple not only time and money but also mental anguish from disputes over property or asset division if they choose to divorce later. These legal documents let couples decide how they would like their marital property to be divided, as well as other considerations. However, there may be situations where a prenuptial or postnuptial agreement may be deemed invalid and therefore unenforceable. If you are considering working with your partner to plan ahead, it is best to learn what to include in these types of agreements and what would make them null and void. 

Premarital Considerations

A prenuptial agreement, or “prenup” is a legal document that an engaged couple can create to determine how they will address property, assets, debts, and other financial issues throughout their marriage and if they decide to divorce at any time. With this approach, property can be divided in the way the spouses wish. For example, they could choose a 60/40 or 70/30 percentage split.
As many other states did, Illinois adopted the Uniform Premarital Agreement Act (UPAA), which contains rules that dictate how courts decide whether a prenuptial agreement is enforceable. All prenuptial agreements must be put in writing and signed by both spouses for it to be enforceable. They do not need a witness to sign, and it does not have to be recorded with the court’s clerk. However, it is important to know that a court is more inclined to enforce the prenup if it can be proven that each spouse had prior knowledge of each other’s finances before signing it.

Postnuptial Factors

In some cases, a couple may not have considered a prenuptial agreement or did not have time to draft one if they had a short courtship before tying the knot. In these cases, a postnuptial agreement (postnup) may be an option. A postnup is a legal contract between spouses that defines what happens if the marriage ultimately ends. It can also be beneficial for those who are married and plan to stay together even after experiencing problems in their relationship, such as infidelity. 

Although the spouses may be estranged for whatever reasons, they may still be willing to work on reconciliation. If efforts to reconcile do not work, they may want protection. For instance, one spouse may have dissipated a large sum of the couple’s savings during the marriage. The other spouse may put off filing for divorce if his or her partner agrees to creating a postnup that summarizes how their finances will be distributed in case they divorce. In these situations, even if divorce is imminent, a post-nup can still help avoid an expensive divorce.

When Would a Prenup or Postnup Be Unenforceable?

Usually, prenups or postnups are enforced by Illinois courts without incident. However, there are a few scenarios that would make these agreements invalid, and this will be determined by a judge. Situations in which they might be considered unenforceable include: 

  • One spouse signed the document involuntarily or under duress.
  • The monetary stipulations of the agreement render one spouse eligible for public assistance.
  • The terms of the agreement are extremely unfair, unjust, or “unconscionable.”
  • One spouse did not divulge assets or debts before signing the agreement.
  • The spouse who did not know the other spouse’s financial data never waived the right to review it.

In order for one spouse to claim he or she signed a document “under duress,” that means one spouse threatened the other spouse that he or she felt there was no choice but to sign the contract. Courts typically do not void a prenuptial agreement due to it being unconscionable unless it is under extreme circumstances or will result in severe consequences or hardship for one party. 

Contact a St. Charles Family Law Attorney 

Although most couples do not go into a marriage thinking it will end in divorce, it is a good idea to be prepared just in case the marriage does not last. Pre- and postnuptial agreements can protect your rights to marital assets or property if your relationship sours. A diligent Kane County prenuptial agreement lawyer will help explain how to draft these important legal documents so you receive what is rightfully yours. Call the Law Offices of Benedict Schwarz, II PC at 630-200-4882 to schedule your free consultation. 


Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K503

https://www.apa.org/topics/divorce/

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