Invalidating a Premarital Agreement Under Illinois Divorce Law
Posted on October 31, 2012 in Divorce
When a party desires to have a prenuptial agreement held invalid under Illinois law, the first factor that must be considered is the date of execution. Different standards will apply depending on when the parties entered into the agreement. The principles of the Illinois Uniform Premarital Agreement Act (“IUPAA”) govern any agreement executed on or after January 1, 1990, while common law controls prior agreements.
A prenuptial agreement signed prior to 1990 will be upheld so long as:
- It does not create an unforeseen state of poverty.
- Both parties had full knowledge of the other’s finances prior to signing.
- It was entered into voluntarily.
- The agreement is fair and reasonable at the time of enforcement of the agreement.
For premarital agreements signed after 1990 under the IUPAA, the “fair and reasonable” standard is no longer applied. A party seeking to invalidate a post-Act agreement must prove only that (1) he or she did not sign the agreement voluntarily, or (2) that at the time of execution, the agreement was unconscionable, meaning that it was improvident, totally one-sided, or oppressive, and that party neither was given a fair and reasonable disclosure of the property or financial obligations of the other party waived the right to the disclosure. Thus, the enforcement of a prenuptial agreement may hinge on its date of execution.
Proof that there was inadequate financial disclosure provided prior to the execution of the agreement, requires the movant to show that he or she was not provided with a fair and reasonable financial disclosure, did not voluntarily waive in writing the right to any disclosure beyond that which was provided, and did not have or reasonably could not have had adequate knowledge of the other’s finances. Thus, the IUPAA is clear that even unconscionable agreements are not to be automatically invalidated. Under the Act, a party who knowingly enters into an unconscionable agreement will be bound by the bargain he or she made.
A lawyer experienced in family law will know how to navigate through the complicated legal process in an efficient manner, and be there when you have questions. If you feel a premarital agreement is something you may need for your future, in the Kane and DuPage County areas contact The Law Offices of Douglas B. Warlick & Associates, a professional and experienced firm that can make all the difference in your family law matters.
