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When are Prenups Considered Invalid?

prenuptial agreementPrenuptial agreements are gaining popularity and are no longer seen as being exclusively for the wealthy. Many people want to ensure they are protected prior to entering into marriage and may have good reason to do so. However, not all prior prenuptial agreements are upheld in the event of divorce. Oftentimes, the spouse who signed the prenup will challenge its validity in order to have the agreement declared invalid so they will not be held by its terms. The question arises: what makes a prenup invalid in the state of Illinois?

Illinois Law

Illinois law regarding the validity of prenuptial agreements changed in 1990. As a result, agreements signed before 1990 are held to different standards for validity than those signed after January 1st of that year.

Prenuptial agreements signed in the year 1990 and after are governed by the Illinois Uniform Premarital Agreement Act (UPAA). Under the UPAA, a party who is challenging the validity of a prenuptial agreement must show that the agreement was not entered into voluntarily or that the agreement was unconscionable at the time it was signed and that there was not full and fair disclosure of finances between the parties. Proof of inadequate disclosure involves the party seeking invalidation to show that he or she was not provided with full financial disclosure, that voluntary waiver of such disclosure was not made, and that he or she did not know nor could have known about the true nature of the other party’s finances.

It is important to note that under UPAA, there is no longer a requirement that the prenuptial agreement be fair and reasonable, and so a prenuptial agreement signed in 1990 or after cannot be held invalid on that basis. In addition, UPAA prevents prenuptial agreements from being held automatically invalid on the basis of unconscionability alone. According to the Act, a party who knowingly and voluntarily enters into an unfair agreement will be bound by the terms of the agreement.

Any prenuptial agreements signed prior to 1990 are held to standards established by Illinois common law. Prenuptial agreements signed before UPAA was enacted are held to principles that are familiar in other areas of contract law. Generally speaking, a prenuptial agreement will be found valid according to Illinois common law as long as both parties had full knowledge of one another’s finances prior to signing the agreement, there was no issue of fraud, the agreement was entered into freely and voluntarily, execution of the agreement does not create a situation of poverty that was previously unforeseeable, and that the agreement was fair and reasonable at the time of its execution.

Family Law Attorney

If you are considering having a prenuptial agreement drafted, be sure to hire an attorney who will take the proper precautions in ensuring it will be upheld if challenged. As with many other family law matters, the experienced team of Warrenville family law attorneys at Davi Law Group, LLC are here to help you properly execute a prenuptial agreement. Contact us today to schedule a consultation to discuss your matter. We have successful experience serving clients in DuPage County and the surrounding area.
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