Illinois Prenups: When Are They Unenforceable?

Cari Rincker Family/Matrimonial Law Leave a Comment

Not all prenuptial agreements are created equal.  Sometimes, in the course of a divorce proceeding, the court will strike down a prenup and refuse to enforce it between the divorcing parties.  If you are working with an attorney to draft a strong prenuptial agreement between you and your betrothed, or if you have a prenup and are contemplating a divorce, it is important to keep in mind the various reasons that Illinois courts set aside or modify prenuptial agreements.

Is my prenup enforceable?

Under the Illinois Uniform Premarital Agreement Act, there are several reasons a court may strike down a prenuptial agreement.  If either spouse did not voluntarily sign the prenuptial agreement, then it cannot be enforced between the parties in a divorce proceeding.  Likewise, if the underlying marriage is void, then the prenuptial agreement is also void.  Courts may refuse to enforce prenups if they are unconscionable, or courts may modify prenups if they cause undue hardship.

What makes a prenup unconscionable?

When determining whether a prenup is unconscionable, a court will analyze the prenup on two different grounds.  First, the court will decide whether the prenup is procedurally or substantively unconscionable.  Second, the court will assess whether there was a fair disclosure of information regarding the parties’ property when the prenup was signed.  If the prenup fails on both grounds, then it is not valid.

A prenup is procedurally unconscionable if there was something improper about the formation of the agreement.  For example, a prenup with terms that are exceedingly difficult to find, read, or understand may be procedurally unconscionable, particularly where one of the parties speaks a different language or is not represented by an attorney.  A prenup is substantively unconscionable if the resulting agreement has terms that are harsh, oppressive, or overwhelmingly one-sided. Prenups that deprive a party of all assets in the event of divorce are often found to be substantively unconscionable if that party entered the marriage with no other means to support themselves.

For the purposes of disclosure, a valid prenup must be accompanied by at least one of the following: (1) the fair and reasonable disclosure of each spouse’s property, or (2) the spouses’ voluntary and written waiver of any such disclosure, or (3) the spouses’ adequate knowledge of each other’s property.  In other words, a party cannot challenge a prenup as unfair in court if he or she knew at the time of signing exactly what property rights were at stake.

When will a court modify a prenup for undue hardship?

Sometimes a prenuptial agreement that was fair and reasonable when signed is no longer fair and reasonable several years down the road; the economic circumstances of each spouse can change drastically during the course of a marriage.  If a court determines that enforcing a prenup would cause undue hardship to one of the spouses, because of the development of circumstances that were not reasonably foreseeable when the prenup was originally drafted, the court may modify the prenup and require one spouse to pay spousal support to the other.

What if only part of my prenup is unenforceable?

If a court finds that certain provisions of a prenup are unenforceable, it may choose to strike down only those unenforceable provisions if they are severable, i.e., if the rest of the prenup still makes sense without the stricken provisions.  Strong drafting is important here, it is in your interest to work with someone who knows how to draft an agreement that can survive enforceability and severability challenges.

If you are looking for assistance with drafting a prenuptial agreement that meets your needs and protects your rights both now and in the future, or if you are going through a divorce and want to understand your rights pursuant to a prenuptial agreement, contact our law office and schedule a consultation.


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