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How to Know If a Prenup Is Enforceable in Illinois

By Nottage and Ward on July 26, 2021

A prenuptial agreement is an agreement made between two people before their marriage that outlines how they would divide their assets in the event of a divorce. While you would assume this makes a legally binding contract, some aspects of a prenuptial agreement may actually be unenforceable.

Even though a prenuptial agreement is made between you and your future spouse, it is important to have the advice of a skilled team of Chicago family law attorneys. We will work with you to ensure that you are entering into an agreement that covers the wishes of each spouse and adheres to our state’s laws and regulations. Contact our office today at (312) 332-2915 for a free consultation.

Prenuptial agreements may include the following issues:

  • The right of each spouse to sell, use, transfer, dispose of, or manage property.
  • If a spouse should pay the other alimony, including the amount and timeframe of such payments.
  • How the laws of the state apply to the agreement in the event of potential dispute between spouses.
  • How the ownership of property is divided between each spouse in the event of a divorce.
  • The obligation of each spouse to carry out the agreement.
  • The obligation of each spouse to create a will to carry out the terms of the agreement.

It is important to note that any decisions made in the prenuptial agreement may be changed at any time throughout the course of a marriage. These changes must be made in writing and signed by both spouses. Agreement terms may also be revoked, the reasons of which must also be made in writing and signed by both spouses.

How Are the Terms of a Prenuptial Agreement Enforced?

Like many other states, Illinois has implemented what is known as the Uniform Premarital Agreement Act (UPAA). The UPAA dictates how the courts should handle and enforce prenuptial agreements by providing a list of guidelines. When making a prenup, the spouses are the only ones required as witnesses and do not have to be on record with the clerk of court.

It is advisable to provide a list of the debts and assets of each partner before the marriage. While this is not legally required, it will assist the courts and provide proof that each spouse was fully aware of who owned which piece of property before they entered into a marriage.

Reasons to Invalidate a Prenuptial Agreement

  • Did each spouse agree to the contract of his/her own accord? If the prenuptial agreement was signed by one partner under threatening circumstances, the agreement would be invalid.
  • Did one spouse stipulate that the marriage would only occur if both signed a prenuptial agreement? The contract would be void if the court determines that one spouse only signed the contract under duress.
  • One spouse would rely on public assistance as a result of the agreement.
  • One spouse lied to the other about debts and assets.
  • One spouse did not receive an honest record of the other spouse’s financial information. There would be no other means of learning the other spouse’s financial information, but they still did not receive it.

One spouse claiming that the other refused to marry without a signed prenuptial agreement is not enough to have it thrown out. It must be proven that one spouse threatened the other, leading the other spouse to have no choice but to sign the document. The period of time between the creation of a prenuptial agreement and the marriage ceremony may also be considered by the court when determining whether the contract was signed under threatening circumstances. It is important to note that the state of Illinois does not require an independent review by an attorney to properly enforce the contract.

Prenuptial Agreements: An Attorney Can Help

Carrying out the terms of a prenuptial agreement can be complicated and stressful. It is important to have a clear understanding of the law when working out the terms you previously agreed to with your spouse.

Our team of Chicago family law attorneys will work with you to ensure that your prenuptial agreement is legitimate and enforceable before moving forward. Call Nottage and Ward, LLP, today at (312) 332-2915 to speak with an attorney.

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