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A premarital agreement, also known as a prenuptial agreement or prenup, is a contract between a couple that lays out many of the rights of each party in the event of divorce or death. These agreements cannot settle every issue. For instance, child support cannot be waived in a premarital agreement.
However, prenups can resolve many issues, like property division or spousal support rights. Not all premarital agreements are enforceable, however. The parties must respect some formalities and also obey certain substantive rules if they want a court to hold both of them to their agreement.
Obeying the formalities is an important part of creating an enforceable premarital agreement. This distinguishes these agreements from the majority of contracts, which people can form simply by oral agreements. According to the Illinois Uniform Premarital Agreement Act, which applies to all premarital agreements executed after 1989, a prenup must be in writing and have the signature of both parties in order for a court to enforce it.
Additionally, the prenup does not go into effect until the marriage actually begins, and will likely not count in the event of a “void” marriage. Void marriages are those that are illegal for some reason, such as an instance of bigamy.
There are also a variety of substantive issues that can render all or part of a prenup unenforceable. One common substantive issue that would nullify a premarital agreement would be if one of the spouses signed it under duress, such as a threat of physical harm. Beyond that, the agreement can also be held unenforceable if a court finds it to be “unconscionable” to one party and that party:
Unconscionability is a legal term that means that a contract would be extremely unfair to one party, that there was some unfairness in the process of forming the contract, or, most commonly, a combination of those two things.
The other large substantive issue of enforceability relates to spousal support. Spouses may agree to set certain support obligations for each other in the premarital agreement, but courts have the option to disregard that portion of the agreement if the provision causes one spouse undue hardship due to circumstances that were not foreseeable when the agreement was signed.
Whether you already have a premarital agreement and want to ensure that it is enforceable or you are considering creating such an agreement, contact a family law attorney at Martoccio & Martoccio today. Our experienced lawyers can help you draft a fair, enforceable premarital agreement. We serve clients in Cook, DuPage, Will, and Kane Counties.
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