5 Things That Can Invalidate an Illinois Prenuptial Agreement

 Posted on June 17, 2020 in Family Law

No one likes to imagine the worst-case scenario, but in some cases, it can be helpful. When a couple gets married, they can choose to plan ahead in case the relationship deteriorates and ultimately ends in divorce. A prenuptial agreement (prenup) is a legally binding document that outlines how various marital issues will be handled should a couple decide to terminate their marriage. In order to be valid, the terms must be put in writing and signed by both spouses. It states who gets the rights to what property in case a legal separation or divorce were to occur. Previously thought to be appropriate only for those with significant assets or in second marriages, prenups have gained popularity in the past few years. However, it is important to understand what elements a prenup can include and factors that could make it invalid.  

What Issues Does a Prenup Address?

A premarital agreement can include several issues and it can be modified at any point during the marriage if a couple so chooses. Any amendment to it must also be in writing and signed by both parties. Spouses can revoke the prenup entirely, but both of them have to agree to cancel it by stating their intentions in writing and signing it.

Here are a few of the typical terms that are in a prenuptial agreement: 

• Spousal maintenance (amount and duration of payments) 

• Each spouse’s ownership of the marital property upon divorce

• Rights to use, manage, transfer, sell or dispose of property

• Obligation to create a will to carry out the terms of the agreement

• Ownership rights from a spouse’s life insurance policy (death benefit)

• Applicable state laws in case of a dispute

It is important to note that child support and the allocation of parental responsibilities cannot be determined in a prenuptial agreement. Child support in Illinois is determined by the Income Shares Model, which looks at both parents’ net income. If the spouses mutually agree, they can make a decision on child custody at the time of divorce. Otherwise, a court will decide for them. These determinations must be based on the child’s best interests.

Factors That Invalidate a Prenup

The Illinois Uniform Premarital Agreement Act (UPAA) defines what makes a prenuptial agreement valid and enforceable. The UPAA governs how courts decide whether a prenuptial agreement is enforceable through a set of guidelines. The following will invalidate a prenup:

1. One spouse was forced or coerced into signing the document involuntarily or under duress.

2. The terms of the agreement are unfair, unjust, or unconscionable.

3. The financial provisions of the agreement make one spouse eligible for public assistance.

4. One spouse did not disclose assets or debts before signing the agreement.

5. One spouse never waived the right to review the other spouse’s financial data.

Contact a St. Charles Family Law Attorney 

Creating a prenuptial agreement does not mean a couple intends to get divorced in the future. It is simply a way of ensuring that their wishes are put down in writing should circumstances change. The qualified legal team at Weiler & Associates, Inc. understands how important it is to plan for the unexpected, such as divorce. Our Kane County prenuptial agreement lawyers will help you draft a prenup that is fair and protects your rights to marital property. To schedule your confidential consultation, call us today at 630-331-9110.

Sources: 

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

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=075000050K503