Prenuptial Agreements and Unconscionability

 Posted on September 16,2016 in Prenuptial Agreements

Statistics show that Americans are, on average, waiting longer than ever to get married for the first time. While the maturity that normally accompanies age may be a factor in the recent decrease in the divorce rate, waiting to get married also means that each spouse tends to bring more property, assets, and debts to the marriage. As a result, many couples are turning to prenuptial agreements to help them establish which property is whose and how certain assets are to be addressed in the event of a divorce.

Free to Make Your Own Choices

Prenuptial agreements in Illinois are governed by the Uniform Premarital Agreement Act which the state adopted in 1990. The law gives prospective spouses the right to negotiate the terms of a prenuptial agreement in whatever manner suits them. The only topics that a prenuptial agreement is statutorily prohibited from addressing are the rights of a child regarding child support and custodial (parental responsibilities) plans made in advance of such a need.

Enforceability

A properly executed prenuptial agreement will be enforced by a judge overseeing a divorce proceeding. There are, however, several factors that could lead a judge to set aside a prenuptial agreement as unenforceable, including:

• The agreement was signed without full financial disclosure by both parties, though an informed waiver could override this concern;
• One or both parties did not have appropriate representation;
• One party signed the agreement without full knowledge of its contents, or was under duress or coercion;
• One or both parties did not have appropriate time to consider the ramifications of the agreement; or
• The terms of the agreement are unconscionable.

The Importance of Fairness

While most the of the other criteria that could render a prenuptial agreement unenforceable are fairly straightforward, the question of unconscionability is often a little more challenging. An agreement found to be unconscionable is one in which the terms are so one-sided and unfair that it would place one spouse at an undue disadvantage if it was enforced. For example, if your prenuptial agreement stipulated that all of the property that you owned prior to the marriage—which is non-marital property under the law—would be allocated to your spouse in the event of a divorce with no considerations in return, the court may be inclined to find your agreement unconscionable.

If you are in the process of drafting a prenuptial agreement, an experienced Rolling Meadows family law attorney can help you ensure that it can withstand challenges down the road. Call 847-253-3100 today for a free, no-obligation consultation at Cosley Law Office.

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59

http://www.forbes.com/sites/jefflanders/2013/04/02/five-reasons-your-prenup-might-be-invalid/#197707fa2e3d