The average age at which Americans marry for the first time continues to rise to record levels. This, combined with the increasing number of second and third marriages, means that couples are bringing more of their individual lives with them when they marry. Each spouse, on average, has had more time to pursue business interests and accumulate wealth, for example, than they may have had a generation or two ago. As such, prenuptial agreements are also becoming increasingly common, as individuals seek to protect specific assets or interests in the event the marriage fails.
What happens, though, when a prenuptial agreement is flawed? Is it possible to for a signed prenuptial agreement to be invalidated? The simple answer is yes, it is possible, but not guaranteed. To understand why, it is important to understand the basis for a prenuptial agreement and what the law requires.
Illinois law regarding prenuptial agreements recognizes that they are permitted to address:
- Which property and assets are to be considered marital assets;
- The property and assets to which each spouse is entitled; and
- Provisions regarding spousal maintenance, and other financial arrangements.
The law specifically prohibits prenuptial agreements from affecting potential child support decisions or orders. Prenuptial agreements are most commonly used to protect address financial issues, but assets such as inheritances and heirlooms may also be designated by the agreement to children from a previous marriage.
There are several situations in which a court, as provided by law, may decide a prenuptial agreement is not enforceable:
- Fraud: Assets and debts at the time of the agreement were not fully disclosed or their disclosure was not appropriately waived.
- Coercion: The agreement was not made voluntarily, but was signed under duress or without the appropriate mental capacity.
- Unforeseen Changes: An agreement to waive or reduce spousal maintenance may be set aside if it will cause undue hardship to one spouse “in light of circumstances not reasonably foreseeable at the time of the execution.”
- Unconscionability: The court may decide the agreement was inherently unfair and inappropriate from the outset.
Contesting a prenuptial agreement is not particularly easy, however. A party must be able to prove that one of these provisions is applicable to their situation. As courts may differ in their opinions as to what constitutes such concepts as “undue hardship” or “adequate knowledge,” there is no guarantee that a contested agreement will be set aside.
If you live in Illinois and are considering a prenuptial agreement, contact an experienced DuPage County family law attorney. We can review your situation and help you negotiate an agreement that will protect your interests while providing a stable beginning to your marriage.