Make Sure Your Prenup is Enforceable

 Posted on October 09, 2015 in Prenuptial and Postnuptial Agreements

Prenuptial agreements, also known as prenups, constitute a special type of contract between prospective spouses. Prenups are different than other types of contracts, which are legal if there was a “meeting of the minds” when the contract was formed; specifically, prenups allow both parties to take a second look at the terms of the agreement. Yet what does this mean if you are considering signing a prenup? It means that your prenup has to be fair and reasonable at the time you need to use it—when you divorce. It is possible that at the time of enforcement a court could find an agreement to be invalid, even if the parties entered the agreement with full knowledge and consulted counsel. If you are divorcing and have a prenuptial agreement, it is important to consider the circumstances under which a court may find a prenuptial agreement invalid.

UPAA and Prenuptial Agreements in Illinois

Illinois has adopted the Uniform Premarital Agreement Act (UPAA). The UPAA establishes a set of guidelines that a court will use when deciding whether or not a prenuptial agreement is valid.

There are a few basic requirements for prenuptial agreements. The prenup must be written and both spouses must sign the prenup. However, the prenuptial agreement does not need to be witnessed or signed by anyone else other than the couple, and it does not have to be recorded by a court clerk.

When is a Prenup Unenforceable?

Generally, courts enforce prenuptial agreements. The fact that one spouse receives more assets than the other spouse is not enough for a court to find a prenuptial agreement unenforceable. A court is likely to invalidate a prenuptial agreement under these circumstances:

• One spouse signed the agreement under duress;
• The terms of the agreement would make one spouse eligible for public assistance;
• The terms of the agreement are unconscionable or severely unfair/unjust;
• One spouse did not disclose the true value of his or her assets and debts;
• The spouse who did not receive the other spouse’s financial information did not waive that right; or
• The spouse who did not have the other’s spouse’s financial information could not have gotten the information from another source.

What is Duress and Unconscionability?

For a court to find a prenup unenforceable due to duress, a spouse must be able demonstrate that their spouse threatened them to the degree that that he or she had no choice but to sign the agreement. This must be more than one spouse saying the marriage will not take place if the prenup is not signed. Generally, duress means that one spouse applied improper pressure or influence over the other spouse such that he or she took away his or her spouse’s free will.

Generally, a court will not enforce unconscionable contract agreements, and a prenuptial agreement is not an exception to that rule. The court will invalidate a prenuptial agreement if the terms of the agreement are so unfair that it would result in catastrophic circumstances for one spouse. If the terms of the agreement are so unfair that one spouse would face extreme financial hardship while the other prospered, then it is unlikely the court will enforce the agreement.

Contact an Attorney

If you are considering a divorce and you believe your prenuptial agreement may not be enforceable, contact the DuPage County divorce attorneys at Davi Law Group, LLC. We can help you review the terms of your prenup and determine whether a court may find in unenforceable. Please contact us today at 630-657-5052 to discuss your prenuptial agreement.

Source:

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