Today, those considering marriage are more likely to enter into a prenuptial agreement than ever before. A prenuptial (aka premarital) agreement is an agreement between prospective spouses made in contemplation of marriage and effective upon marriage. A prenuptial agreement often addresses the division of property and spousal support if the parties separate or divorce.
Post nuptial agreements, entered into after the marriage, are typically executed when parties who intended to sign a prenuptial agreement ran out of time to sign an agreement prior to the marriage, or sometimes, couples may enter into an post nuptial agreement following a trial separation in an effort to resolve financial issues should their reconciliation fail. Prenuptial and post nuptial agreements are viewed much the same under the law.
The Uniform Premarital Agreement Act also known as the UPAA (750 ILCS 10/1) is the uniform act governing prenuptial agreements drafted by the National Conference of Commissioners on Uniform State Laws in 1983. The UPAA has been adopted (all or in part) by the majority of states in the U.S., including Illinois, and sets forth minimal standards for prenuptial agreements that generally require that both parties can legally enter a contract, both voluntarily sign, and that the parties disclose their respective financial situations or sign a waiver.
Although courts generally enforce most prenuptial agreements, a court can refuse to enforce an agreement that puts one party in financial jeopardy – such as making one spouse eligible to receive public assistance – including agreements that are grossly one-sided that call into question the circumstances under which the agreement was signed (as in involuntarily or under duress). A court may also decline to enforce agreements where one spouse fails to disclose assets and debts prior to signing an agreement in the absence of a waiver and in cases where unforeseen circumstances come to light, such as someone who was too young to enter into a contract.
Is it ironclad? When trying to ensure that a prenuptial agreement will be enforceable in the event of a divorce, or conversely, when one spouse is trying to poke holes in a prenuptial agreement to get their fair share of the marital assets and spousal support during a divorce, the proof is in the pudding so to speak.
- Is it in writing and did both parties sign the agreement voluntarily? Each party having their own attorney draft and/or review and witness the signing of a prenuptial is beneficial to say the least. A properly drafted prenup, thoughtfully executed, witnessed by others has a far better chance of holding up in court if a dispute arises.
- Does the prenup include a schedule of each spouse’s debts and assets? Did one spouse waive their right to this information in writing before signing the prenuptial? A court is more likely to enforce an agreement if it includes proof that each spouse knew the other’s financial situation before signing it.
Is Your Prenuptial Agreement Enforceable or Not?
There are many situations where prenuptial agreements are invalidated in part or in whole so it is important to work with an experienced prenuptial agreement lawyer if you are seeking to protect assets in the event of a divorce or if you wish to challenge a prenup that you believe you were duped or pressured into signing before you were married. Contact Lake county Illinois premarital agreement attorney Ronald L Bell for more information regarding the enforceability of your Illinois prenuptial agreement at 847-495-6000.