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Premarital Agreements and Post-Marital Agreements in Illinois Divorce Cases

By Gunnar Gitlin

Premarital agreements are also called prenuptial agreements (“prenups”) and sometimes called antenuptial agreements. The terms are the same. A premarital agreement is a written contract created by two people planning to be married. The agreement typically lists all of the property each person owns, as well as their debts, and states what each person's property rights will be after they marry both in the event of divorce or death. Premarital agreements will often state whether spousal support (maintenance or alimony) will be paid after the marriage ends. Perhaps one of the most frequent scenarios in which premarital agreements are used are those in which one or both of the parties is entering into a second marriage and wishes to preserve property for children or grandchildren from an early marriage. Illinois is one of 27 states (as of December 2009) that have enacted the Uniform Premarital Agreement Act ("UPAA"). This Uniform Act was originally drafted by the National Conference of Commissioners on Uniform State Laws in 1983. The Illinois version of the law is called the Illinois Uniform Premarital Agreement Act.  The Illinois Uniform Premarital Agreement Act only applies to premarital agreements entered after December 31, 1989.

Setting Aside Prenups:   One of the key questions is how a premarital agreement in Illinois may be set aside. The UPAA provides that a premarital agreement is not enforceable if the party seeking to have the agreement “thrown out” (determined to be not enforceable) proves either (1) that the agreement was not entered into voluntarily (which is difficult to prove); or (2) that the agreement was unconscionable when it was entered into.  Proving either of these facts, together with certain other things which might have occurred before the agreement was signed, will usually be sufficient to render an agreement unenforceable. The party must demonstrate these “other things” must have occurred before the agreement was signed and that the party:

1. “was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;”
2. did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
3. did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Limitations on Maintenance:   Another critical issue is whether a premarital agreement can limit or prevent the other spouse from seeking alimony (also called spousal support or in Illinois generally called maintenance). If the agreement was executed after January 1, 1990, (and to a lesser extent even before this date), a provision to limit a spouse’s right to maintenance is generally enforceable. On the other hand, Illinois law states that if a provision modifying or eliminating spousal support, “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.” The key phrase, however, is that the Act only provides for support “to the extent necessary to avoid such hardship.”

Illinois law does provide an example of what this last phrase may mean. An example of an Illinois addressing this is Marriage of Barnes (4th District, 2001). As to whether the wife suffered an undue hardship, the court commented, “Adjusting from a lifestyle of luxury to one limited by a $24,000 salary may not be easy for [the wife], but we do not find such a transition to be an undue hardship.”

Representation by Competent Counsel:  If there will be a premarital agreement, the best practice is for both parties to be represented by counsel. A question and answer from “nolo press” discusses premarital agreement. Because this Q&A was well drafted I will quote from it. It states:

You and your fiancé can go a long way toward making your own agreement by evaluating your circumstances, agreeing on what you want your agreement to cover and even writing a draft of the contract.  But if you want to end up with a clear and binding premarital agreement, you'll eventually have to enlist a good lawyer to help you. In fact, you will need two lawyers -- one for each of you.  That may sound like surprising advice from advocates of self-help law.  But it's true.

The laws governing marriage contracts vary widely from state to state. Unless you want to invest your time learning the ins and outs of your state's matrimonial laws, you'll want to find a lawyer who fully understands them. She can help you put together an agreement that meets state requirements and says what you want it to say.

Generally, there are two critical elements to making certain a premarital agreement is enforceable. These include ensuring that there is:

• Full and fair disclosure of the assets and liabilities of each person.
• Ensuring that person is represented by a lawyer.

Premarital Agreements to Protect a Premarital Business:  Illinois now has a line of cases addressing non-marital businesses with retained earnings that accrue during a marriage.  One such case is In Re Marriage of Lundahl,  (1st Dist., November 25, 2009).   In light of this line of cases, it even more important for a business owner who is in a majority or control position to have a premarital agreement to ensure that his or her intentions regarding potential non-marital character of the retained earnings are met if there were to be a divorce. 

Many fellows of the American Academy of Matrimonial Lawyers draft premarital agreements as a part of their practice. To view a list of Illinois Fellows who represent a party to a premarital agreement, you can use the search tool in this website.

Prenups versus Post-nups:   Another good question is the difference between a “prenup” and an agreement after the marriage. The question is whether an agreement can be drafted after the marriage which is not an agreement to divorce but spells out our intent for what might happen if there were to be a divorce. In Illinois there was an interesting December 2007 case addressing post-marital agreements. In Tabassum (PDF), the Illinois Appellate court for the Second District addressed the parties' agreement where the husband had been guilty of an act of infidelity and the parties planned to reconcile but as a result of the infidelity they agreed to gift certain property to the wife as her non-marital property. Ultimately the Illinois appellate court in this case upheld the agreement.

For more information about the Illinois Chapter of AAML and the services we provide, please contact us at 1-312-263-7682 between 8 a.m. and 5 p.m. Central Standard Time (CST), fill out our contact form, or email us at info@aaml-illinois.org.