Articles Posted in Prenuptial Agreements

Section 7(b) of the Illinois Uniform Premarital Agreement Act states that if a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the prenuptial agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the prenuptial agreement, a court, notwithstanding the terms of the prenuptial agreement, may require the other party to provide support to the extent necessary to avoid such hardship.  The following is a case study involving the application of these principles.


In the case of In re the Marriage of Barnes, the Appellate Court for the Fourth District analyzed what constitutes undue hardship and unforeseen circumstances.  In that case, Edward was the sole shareholder and chief executive officer of a company.  He earned in excess of $250,000 per year.  His wife, Sandra, quit her office job where she had been earning $19,000 per year in order to spend more time with Edward.  Before their marriage, they signed a prenuptial agreement.

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Imagine the classic scenario: you are presented with a prenuptial agreement on the eve of your wedding, and asked to sign before you make your vows tomorrow.  You’ve been together for years and had no idea this was coming.  Your soon-to-be spouse earns significantly more than you and has more assets than you.  Should you hire an attorney?  Did your spouse disclose assets you had no idea he or she had?  Are you being asked to waived spousal support in the event of divorce?  Should you just “risk it” and sign the agreement, hoping that if you get divorced the court will deem it unenforceable?


In Illinois, the Uniform Premarital Agreement Act governs the formation and enforceability of prenuptial agreements.  It provides that a premarital agreement is not enforceable if the party against whom enforcement is sought can prove that he or she did not execute the agreement voluntarily, or if the agreement was unconscionable when it was executed, and that party was either 1) not provided a fair and reasonable disclosure of the assets or financial obligations of the other, 2) did not voluntarily and expressly waive any right to disclosure of the same, and 3) did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other.  As you can see, there are several factors that a court will consider when determining whether a premarital agreement should be enforced.  This results in a very fact-intensive inquiry by the court.



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