As the new year approaches, you may find yourself taking stock of the past twelve months – tallying your triumphs or setbacks, good fortune or regrets.
If one of your regrets over the past twelve months – or 12 years – was signing a prenuptial agreement that you no longer want to abide by, you’ll need more than just buyer’s remorse to get out of it.
Many couples, prior to their wedding day, decide to execute a prenuptial agreement to govern property division, spousal support, financial obligations, and other matters in the event that their marriage ends.
In a 2013 survey of 1,600 members of the American Academy of Matrimonial Lawyers, 63% of the responding attorneys reported an increase in prenups over the previous three years.
But when happily ever after fails to materialize and divorce is on the horizon, one party to the prenuptial agreement may no longer find the agreement to their liking and attempt to get around the agreements they made years or decades ago.
Unless they had been forced to sign the agreement or were misled as to their spouse’s financial condition and assets, avoiding the terms of a prenuptial agreement in Illinois is not an easy proposition.
Force, Fairness, and Failure to Disclose
The Illinois Uniform Premarital Agreement Act (IUPAA) governs prenups in the state and sets forth very specific and narrow bases for voiding such agreements.
As a preliminary matter, it should be noted if both spouses want to tear up or modify the agreement any time after execution, they are free to do so as long as the revocation or amendment is in writing and signed by both parties. (750 ILCS 10/6)
Absent an agreed upon revocation, however, the Section 7 of the IUPPA (750 ILCS 10/7) provides that a premarital agreement is not enforceable only if the party who wishes to avoid its terms proves that:
- they did not execute the agreement voluntarily; or
- the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
- was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
- did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
All of the foregoing relates back to the circumstances at the time the agreement was entered into, not today. Only if, at that time, one party was forced to sign the agreement under duress (“sign or else I won’t marry you” doesn’t count as “duress”), or the other party hid the ball and did not provide accurate information or “fair and reasonable disclosure” in regards to assets, debts, income, pensions, or other financial or personal matters that the other party did not or could not have known about on their own – and they did not waive the right to disclosure of those facts – may a judge refuse to enforce the agreement.
For that lack of disclosure to void the agreement, however, the agreement must be “unconscionable,” that is, excessively oppressive to one party in the context of all of the facts at issue. Whether a given prenuptial agreement is unconscionable is an issue decided by the court on a case by case basis.
Spousal Support Provisions May be Modified for “Undue Hardship”
One exception to the hard and fast rules set forth above relates to spousal support. If a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement “undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement,” a court may require the other party to provide support to the extent necessary to avoid such hardship. (750 ILCS 10/7(b)).
As the changes to Illinois divorce law that take effect January 1 eliminate all grounds for divorce other than “irreconcilable differences, your regret is enough to get you out of your marriage. But it’s not enough to get you out of your prenup.
If you have questions or concerns regarding any issues relating to divorce, including the enforceability of a prenuptial agreement you’ve signed, please give me a call at (312) 236-2433 or fill out my online form to arrange for a free initial consultation.