If you are considering divorce in Illinois and have a premarital agreement—also known as a prenuptial agreement or a “prenup”—you are probably anticipating that the court will uphold the terms of that agreement. Generally speaking, premarital agreements frequently include information about a couple’s property or finances in the event of divorce, including whether and how much spousal maintenance will be paid, as well as how certain property will be distributed in the event of a divorce. The Illinois Uniform Premarital Agreement Act defines property as real or personal property, including both income and debt.
Now, if you have a premarital agreement in place, you may also be wondering if there are situations in which the court will refuse to enforce it? If you are concerned about whether the premarital agreement is enforceable and want to prove that it should not be enforced, it is important to understand what constitutes an unenforceable clause or agreement between two parties who are planning to get married.
Situations in Which a Premarital Agreement Will Not be Enforced
The statute outlines several situations or conditions that can result in a premarital agreement being unenforceable. Depending upon the specific facts of the case, the court may decide to strike a particular term or clause within the premarital agreement (rendering the remainder of the agreement valid and enforceable), or it may decide to say that the entire agreement is unenforceable.
If one of the parties wants to prove that a part or all of the premarital agreement is unenforceable, she or he will need to prove one of the following:
- The agreement was not entered into voluntarily at the same time that:
- One of the parties did not disclose all of his or her property or other financial obligations; and
- One of the parties did not voluntarily waive, in writing, his or her right to disclosure of the other party’s property or financial obligations;
- Marriage was invalid or void (premarital agreement will only be enforced if doing so would be necessary to avoid an inequitable result);or
- One of the parties waived spousal support in the agreement but that party now needs support to avoid undue hardship.
To be clear, it is lawful for one of the parties to waive spousal maintenance in a premarital agreement, but the court can decide not to enforce such a clause if it determines that enforcing it would result in undue hardship to the party who waived support.
Contact a Premarital Agreement Lawyer in Illinois
If you have questions about enforcement of a premarital agreement, an Illinois family lawyer at our firm can assist you. Contact the Law Offices of George M. Sanders, P.C. to learn more about our services.