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b2ap3_thumbnail_shutterstock_1254685708-min.jpgFor many married couples, a prenuptial agreement can provide a sense of security, ensuring that they will be able to avoid uncertainty and minimize conflict in the case of a divorce. By using a prenup to make decisions about issues such as property division and spousal maintenance ahead of time, spouses can protect their financial interests and make sure they will each be able to move forward successfully following the end of their relationship. However, there are some cases where a prenuptial agreement may be challenged by one party. While these challenges may be based on a variety of factors, one common reason a spouse may believe that a prenup should not be enforced is that it is unfair. By understanding when this type of challenge may be made, spouses can determine the best ways to approach these situations.

Unconscionability of Prenuptial Agreements

A prenuptial agreement may favor either party in certain ways, such as by granting one spouse a majority of the couple’s marital assets. Unfairness on its own is usually not a sufficient reason to challenge an agreement. A prenup will generally be enforceable unless it is “unconscionable,” or grossly unfair to one party. For example, if an agreement states that one spouse will maintain ownership of 95 percent of the assets the couple owns, it may be considered unconscionable because it would create a situation where the other spouse would most likely struggle to support themselves.

To successfully challenge a prenuptial agreement based on unconscionability, a person will also need to show that they did not have adequate knowledge of the other spouse’s financial resources before signing the agreement. Most of the time, when creating a prenup, a couple will provide each other with a full disclosure of their finances, including all sources of income, information about the assets they own, and any other issues that affect their financial resources. The parties may also waive their right to receive this type of disclosure. In general, a spouse cannot challenge a prenup based on unconscionability if they received a fair and reasonable disclosure from the other spouse or waived their right to a disclosure in writing. However, a prenup may be challenged if some of a spouse’s assets were not fully disclosed or if the other spouse did not have adequate knowledge of their partner’s income and assets.

St. Charles prenuptial agreement lawyerWhen a couple is planning to get married, divorce is probably the last thing on their mind. When preparing for a life together as partners, a couple usually will not want to think about the possibility of their relationship ending. However, considering this issue can not only help a couple prepare for this unpleasant possibility, but it can also help them identify and address issues that may become a concern in their relationship in the future. After discussing these matters, a couple may find that creating a prenuptial agreement would be a good idea.

Reasons to Sign a Prenup

When creating a prenuptial agreement, or prenup, a couple will make decisions about how certain issues will be handled if their marriage ends, including through divorce, legal separation, or the death of a spouse. This can ensure that they will both have the financial resources they need in such cases, while also allowing them to minimize disputes during the divorce process. A prenup can be beneficial in many situations, including when:

  • One or both partners have significant assets - While assets owned by one partner before getting married will be separate property that will not need to be divided between the spouses during a divorce, it can be easy for marital assets and separate assets to be commingled. For example, one partner may own a house, but the couple may expect to live together in the house, and they may both contribute to mortgage payments or improvements to the house during their marriage. A prenup can specify that certain assets will remain the separate property of one spouse and will not be divided in the case of divorce.

Kane County family law attorneyA prenuptial agreement (prenup) is a premarital contract regarding a couple’s property and assets, including how they will be handled in the event of a divorce. To be legally enforceable in our state, a prenuptial agreement must conform to the legal requirements contained in the Illinois Uniform Premarital Agreement Act. Even a seemingly small error could render a premarital agreement unenforceable. Here, our family law attorneys highlight four of the most common reasons why prenups are deemed invalid in Illinois.

No Formalized, Written Agreement

In some circumstances, you do not necessarily need a written agreement to have a valid contract. An oral contract is sometimes enforceable in Illinois. However, an informal or oral prenuptial agreement is never valid in Illinois. Under state law, a prenup must be “in writing and signed by both parties.” An informal pre-marriage “deal” is simply not enforceable. Only written and formalized prenuptial agreements will be enforced by state courts.

Prenup Contains Invalid Provisions

Not only does a prenuptial agreement have to be formal, but the contents must comply with strict state rules and regulations. There are only certain things that can be addressed within a prenup. If an agreement contains invalid provisions, the whole thing might be thrown out by a court. As a simple example, you cannot negotiate terms for child custody or child visitation within a prenup. In addition, you cannot pre-determine child support obligations.

Kane County family law attorneyIn today’s world, prenuptial agreements are increasingly common, as people are waiting until they are older to get married for the first time, which also means that they are likely to have accumulated significant assets before they are married. Nobody wants to think about the prospect of divorce, especially before you are even married, but a prenuptial agreement can be greatly beneficial if you and your spouse do eventually decide to call it quits. A prenuptial agreement can help you and your spouse determine the majority of your financial and property division issues with little resistance. Even though a prenuptial agreement is a legal contract, it is not set in stone and can be challenged if you believe the agreement is unfair in some way.

Challenging Your Prenup

As a legally-binding agreement, a prenuptial agreement is also legally enforceable. This means that you must abide by the terms of your prenuptial agreement unless the agreement or portions of the agreement are invalidated. If you feel as if your prenuptial agreement is invalid or unfair, you have the right to ask the court to hear your case. The judge will not simply invalidate a prenuptial agreement because you do not like the terms of the agreement anymore. You must prove that there is a legitimate reason for the invalidation of a section or the entire agreement. Common reasons that a judge may invalidate a prenuptial agreement include:

  • The agreement was disproportionately favorable toward one spouse.

St. Charles IL prenuptial agreement lawyerMany people are familiar with prenuptial agreements—or prenups—and the pros and cons associated with them. However, what most do not know is that they can actually be quite complex and address much more than standard asset division. They are also not as ironclad as popular culture paints them to be. It is imperative that before you enter into a prenuptial agreement, you have a good understanding of exactly how they work.

What to Include and Leave Out

Among the primary reasons that couples choose to enter into a prenup are to protect one spouse from the consequences of the other’s debt, or to ensure that provisions are made for the children of a previous marriage. Inheritance laws in most states do not differentiate between the children of a current marriage or a previous relationship, so if there was a promise to, for example, save a personal item for a child of one’s first marriage, it can be advantageous to note that in a prenup. Prenuptial agreements are legally binding, unless it can be proved that the agreement is unenforceable.

With this rationale for entering into a prenup, it is perhaps not surprising that prenuptial agreements, at their most basic, are about money. The provisions you include should almost exclusively deal with financial matters. A prenup is not the place to discuss future child custody or who should take the trash out every day. While asset division is usually thought to fall under the area of divorce law, earmarking certain items in a prenup is perfectly legal and will help to control the situation if there is a question of inheritance. It is also important to note that Illinois and the other states that have ratified the Uniform Premarital Agreement Act (UPAA) explicitly ban any provisions being made for child support in the event of divorce, but they do permit most provisions regarding spousal support to stand. 

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