A prenuptial agreement is designed to safeguard spouses (or oftentimes one spouse) in the unexpected event of a divorce. Prenups are primarily implemented to protect business interests, financial assets, and often to establish the terms and conditions for spousal support in the event of a divorce. A key element in creating a valid and legally-binding prenuptial agreement is to ensure that the agreement was reached with full disclosure of the respective financial circumstances of the parties involved. Courts will often nullify a prenuptial agreement that was reached without a complete exchange of financial information by both parties.
In order to avoid your prenuptial agreement from being nullified by a court in the event of a divorce filing, we highly recommend that EACH spouse hire an experienced family law attorney to review the agreement to ensure it is drafted properly and does not severely prejudice the rights of one party. Without a highly skilled attorney well-versed in Illinois family law, your prenuptial agreement may not get you the results you intended and could in fact leave you worse off. Just because both parties sign a prenuptial agreement does not mean it’s valid and binding, here’s why:
Prenuptial Agreement NO NO’s!
Insufficient timing. ALL prenuptial agreements must be signed before the marriage, as the marriage itself is the primary consideration exchanged for the agreement itself, rendering it a contract. Once the marriage has already occurred, you can throw that consideration out the window. Though this might seem obvious, the time in which a prenuptial agreement is presented to the respective spouse and signed can present a good depiction to the judge as the to validity of the agreement. Asking your spouse to sign a prenup just a few days before the big day can seem indicative of coercion which could invalidate the agreement upon further review. Remember a prenuptial agreement is supposed to be a mutually agreed upon document that was agreed upon after review, negotiation and discussion; not a document signed in the eleventh hour under the pressure of the impending wedding day.
False information. Full financial disclosure of all assets and liabilities is imperative when entering into a prenuptial agreement. Without full disclosure, the other party is at a disadvantage by not being able to see the full picture to make an informed decision about the agreement at hand. An Illinois judge has the power to invalidate the agreement if there is a concern that both parties were not entitled to full disclosure of the other’s financial situation. This disclosure is often documented in the agreement itself by listing the specific assets and liabilities of the respective parties in exhibits attached to the agreement itself.
Have it in Writing. Oral prenuptial agreement are not going to hold up in an Illinois courtroom. Put pen to paper (or preferably have your lawyer do it) to make sure you have a comprehensive agreement on paper which specifically contains the terms of the agreement that has been reached. Make sure the agreement is clear and concise without ambiguity. Also make sure the agreement is notarized and signed by the parties and multiple witnesses so there is no confusion or issues concerning the execution of the agreement itself.
Invalid provisions. This basically means that your prenuptial agreement should not contain any provisions that might be determined by a court to be illegal, unethical or against public policy. For example, for public policy reasons, you cannot waive your right to receive child support (or bargain your way into not paying child support) in a prenup. A court simply will not find such a provision to be valid, in protecting the interests of the child at issue. If invalid provisions are found, it does not necessarily mean the whole prenup goes down the tubes. Typically, a judge will strike the invalid provision and consider enforcing the remainder of the agreement, especially if the agreement itself contains a severability clause which contemplates such.
Unconscionability. An unconscionable agreement, simply put, leaves one party significantly worse off than the other or is patently unfair to one party. Regardless of what is agreed to, the agreement itself has to be relatively fair and somewhat proportional for any prenuptial agreement to stand up in court. There will obviously be situations when one simply entered into a bad deal, for whatever the reason, and a bad deal alone will not be invalidated. For an agreement to be found unconscionable, the court must find that no reasonable person would have entered into the agreement that was reached.