Prenups are often a great consideration that must be take in to account when a divorce is contemplated or actually being litigated. The Illinois Uniform Premarital Agreement Act (Act) (750 ILCS 10/1 et seq. (West 2012)), which applies to any prenuptial agreement executed on or after January 1, 1990, provides that an antenuptial agreement is unenforceable only if the party against whom enforcement is sought proves that: (1) he or she did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed and, before execution of the agreement, the party was not provided a fair and reasonable disclosure of the other’s property, did not waive the right to such disclosure in writing, and did not have (and could not reasonably have had) an adequate knowledge of the other’s property. 750 ILCS 10/7(a) (West 2012). “ The Act omits the previous common law requirements that an enforceable agreement must also be ‘fair and reasonable’ and must not result in an ‘unforeseen condition of penury’ for the party challenging the agreement. Thus, the Act expresses a public policy of enforcing contracts as written absent evidence of fraud, duress, or lack of knowledge.” In re Estate of Chaney, 2013 IL App (3d) 120565, ¶ 19 n. 2, 377 Ill.Dec. 344, 1 N.E.3d 1231. The statute does not allow a court to invalidate a premarital agreement merely because it results in a disproportionate allocation of assets to one of the parties.” In re Marriage of Heinrich, 2014 IL App (2d) 121333, 7 N.E.3d 889, 380 Ill.Dec. 26 (Ill. App., 2014). Facts that are considered when the validity of a prenup is to be an issue in a divorce proceeding include:
A. Entered into by people legally able to be married? If one party was already married or too young to marry, the marriage is invalid, and the prenup never actually took effect.
B. Whether the prenup was in a written format and signed by both parties BEFORE marriage.
C. Agreements presented immediately before the wedding day or after one party or one party’s family has spent a large amount in preparation for the wedding can be considered executed under duress and not freely entered into.
D. Coercion or pressure by one party on another to sign the document can be critical. It is not enough that the pressure is merely that one party will refuse to go through the wedding.
E. Did both parties have reasonable time to review and consider the proposed prenup agreement? If the drafting party had an attorney, did the other party have the benefit of an attorney?
F. Is there proof of full and accurate financial disclosure prior to signing?
G. Does the agreement provide for provisions such as waiving child support or establishing “custody” prior to divorce.
H. Does the agreement leave one party significantly worse off than the other? Is the drafting of the document patently unfair? What the court will look at is whether no reasonable person would have entered into the agreement that was reached.
I. Although modification or elimination of spousal support does not invalidate the agreement as a whole, “If a provision of 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, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.” 750 ILCS 10/7(b).