Will My Prenup Be Enforceable in My Divorce?

Will My Prenup Be Enforceable in My Divorce?

By: M. Scott Gordon

Whether you entered into a premarital agreement—also known as a prenuptial agreement or simply a “prenup”—just a short while ago or many decades ago, if you have made the decision to file for divorce in Chicago or the Chicago area you are likely wondering whether the terms of the contract will be enforceable. When you are drafting a premarital agreement, it is important to work with an experienced family lawyer who understands the ways in which terms of prenups, or the document in their entirety, can be invalidated.

However, if you are already at the stage of filing for divorce and have a premarital agreement, you no longer have the luxury of negotiating the terms of the contract. You can, however, educate yourself about when prenups are enforceable and when they are not, and you can work with a dedicated Chicago area divorce attorney who can either help you to make the best argument for enforcing the agreement or, if you believe you were forced to sign a prenup unfairly, to help you make the best case for not enforcing the contract.

Does the Premarital Agreement Contain Items That Spouses Can Contract About?

The Illinois Uniform Premarital Agreement Act (750 ILCS 10/) governs prenups and their enforceability. The law defines a premarital agreement as “an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” By and large, premarital agreements are designed to allow couples to negotiate the terms of property and spousal support in the event of divorce. The statute defines property as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”

Determining whether an entire premarital agreement is enforceable, or whether or certain terms should be enforced, can be extremely complicated. However, there are some terms that simply cannot be enforced and do not belong in a prenuptial agreement. Most notably, the following types of terms are unenforceable if they are contained in a premarital agreement:

  • Any terms concerning child support;
  • Terms that go against public policy; and
  • Terms that would impose a criminal penalty.

In addition, if a marriage is determined to be void—for instance, if ending the “marriage” would require an annulment instead of a divorce—then the premarital agreement also is typically only enforceable “to the extent necessary to avoid an inequitable result.”

When a Premarital Agreement is Unenforceable

Even if a premarital agreement does not contain some of the inherently unenforceable elements or terms listed above, there are still situations in which a prenup will not be enforceable when the parties get divorced. The statute outlines the following as reasons that the court can deem the premarital agreement unenforceable:

  • One of the parties did not execute the agreement voluntarily;
  • Agreement was unconscionable because one of the parties did not have truthful information about the other party’s finances or property and did not waive his or her right to have that information; and/or
  • Prenup modifies or eliminates spousal support, and that modification or elimination of support would create an undue hardship for the party.

Learn More from a Divorce Lawyer in Chicago

Are you planning to file for divorce but wondering about the enforceability of your prenup? A divorce attorney in Chicago can help. Contact Gordon & Perlut, LLC for more information.