Prenup Agreement

A prenuptial agreement is a contract between two people who are to be married that sets out the terms of their marriage. A prenup is generally used to clarify financial arrangements in case the marriage ends. However, it can also cover other issues such as adultery and child support and rearing issues.

One critical point to executing a valid prenuptial agreement is that it’s done prior to the marriage. Otherwise, it’s not prenuptial. In that case, any agreement would be a post-nuptial agreement, which can be easier to invalidate than a prenuptial agreement. Thus, the strongest means of protecting assets in case of a divorce may be to execute the agreement prior to the wedding. The agreement itself only becomes valid once the marriage occurs. If the marriage doesn’t occur, nothing in the prenuptial agreement is binding.

Upholding the Prenup in Case of Divorce

Generally, the law gives people negotiating a prenuptial agreement wide latitude to agree to the terms that make sense for them. However, having a prenuptial agreement doesn’t mean that a court will agree to enforce it if the couple does divorce. There are key issues the court will consider when deciding if an agreement is valid, which can only be addressed at the time the prenuptial agreement is made.

In Illinois, the Illinois Uniform Premarital Agreement Act (IUPAA) was passed to make it more difficult for parties to challenge the validity of a prenuptial agreement during a divorce. The IUPAA allows courts to invalidate a prenuptial agreement only if the party challenging it didn’t sign it voluntarily or if its terms are unconscionable.

A prenuptial contract might be considered unconscionable if the terms are overwhelmingly to the advantage of just one party, one party didn’t fully disclose their financial assets, or if any provisions violate public policy such as absolving one party from providing child support.

However, an unconscionable prenuptial agreement doesn’t automatically mean the court will invalidate it. The IUPAA does allow someone to knowingly and freely sign a highly disadvantageous prenuptial agreement. It also allows someone to knowingly waive their right to have the other party make a full disclosure of their financial assets, although this waiver must be done in writing.

Therefore, the process of negotiating and signing the prenuptial agreement is critical to the question of its validity if the marriage dissolves. There are some steps that can make it more likely a prenuptial agreement will be upheld:

Have each party represented by their own attorney during the negotiations and drafting of the document.
Provide full financial disclosure or get the written waiver from the other party that full disclosure isn’t required.
Include no provisions that are detrimental to the interests of the children of the marriage.

It is important to note that the IUPAA only applies to prenuptial agreements signed after 1990. If the prenuptial agreement was signed prior to 1990, it is easier to challenge in Illinois courts as the agreement must be found to be fair and reasonable.