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Invalidating Pre-Nuptial Agreements: It's possible!

Prenuptial agreements are often recommended by attorneys as an excellent way to protect oneself in the event of a divorce. However, it is important to understand that prenuptial agreements may be subject to invalidation if the terms are found to be unconscionable. Prenuptial agreements are not indestructible. Knowing the law surrounding the validity of a prenuptial agreement is recommended for those preparing to enter into a prenuptial agreement as well as for those seeking to find a way out of the agreement.

The validity of a prenuptial agreement is based first on when the agreement was signed. An agreement signed prior to January 1, 1990 is evaluated based on the common law principles of fairness and reasonableness. Courts will evaluate the following in determining whether a prenuptial agreement is valid:

1.      Whether or not the agreement created an unforeseen state of poverty

2.      Whether or not both parties had total knowledge of each other's finances before signing the agreement

3.      Whether the agreement was entered into voluntarily

4.      Whether the agreement was fair and reasonable at the time the agreement was enforced

 

For agreements made after January 1, 1990, the Illinois Uniform Premarital Agreement Act (IUPAA) governs the validity. (750 ILCS 10/) The IUPAA differs slightly from the pre-1990 standard in that its main component of evaluation is "unconscionability." Under the IUPAA the court must find that one party (1) did not sign the agreement voluntarily, or (2) the agreement was unconscionable. Unconscionable is a term used to describe agreements entered into unfairly, without adequate information, under oppression, or without reasonable disclosure of the financial position of the other party.

 

The judge will have a great amount of discretion when determining the validity of a challenged prenuptial agreement. Additionally, a party seeking to escape the legal bounds of a prenuptial agreement must prove that the agreement was unconscionable at the time of execution, meaning he/she must prove that he/she was not provided with sufficient knowledge about the other party's true financial position when entering into the agreement, or that he/she could not have reasonably known of the other party's financial position.

 

For more information on divorce and prenuptial agreements, feel free to contact The Law Office of Bradley R. Tengler in Rockford, IL at 815-981-4859 for a free consultation. Please note, the above does not constitute legal advice. Please discuss your specific rights with an attorney in your own jurisdiction.

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The Law Office of Bradley R. Tengler, Inc. 728 North Court Street, Suite B Rockford, IL 61103 Phone: 815-981-4859 Fax: 815-997-5129 Rockford Law Office Map