By Marvin Mendez, Divorce and Family Law Attorney

A few weeks ago, I shared that we’re seeing an increase in prenuptial and postnuptial agreements during the COVID-19 pandemic. Unfortunately, we’re also helping clients who have realized their existing prenup is invalid.

Prenuptial agreements allow couples to create a contract that determines how their property, wealth and assets will be handled during the dissolution of marriage. This includes savings accounts, 401(k)s, inheritances, homes, maintenance, wills and anything else related to the couple’s marital estate.

Contracting all of these elements requires a great deal of thoroughness and transparency—and if you’re not cautious, you could risk your prenup being invalid under Illinois law.

Prenups can be ruled invalid in court for a few common reasons:

1. One spouse was forced, under duress, to sign the prenup involuntarily
2. The prenup was unconscionable at the time of creation and
   • One party was not provided with disclosure of property of the other party
   • One party did not voluntarily and expressly waive their right to disclosure of property
   • One party did not have or could not have had an understanding of the other party’s property
3. The prenup waived one spouse’s right to maintenance, but this caused them unforeseeable and undue hardship

Let’s take a closer look at these three circumstances.

What if I was forced to sign my prenup?

A premarital agreement cannot be enforced if one party did not sign it voluntarily. While this certainly does happen, it can be challenging to prove in court. If you were forced to sign your prenup, we’ll have to show the court that you were made to sign it under duress.

Duress does not include situations where, for example, a partner threatens to not follow through on the marriage or an in-law threatens to not pay for the wedding. To be considered duress, we have to prove in court that you were left with no alternative—and that the consequence for not signing would have been extreme.

If you’re being pressured to sign a prenup you don’t agree with, contact our team so that we can support you and fairly represent your financial status and goals. And if you were forced to sign a document like this in the past, we can help you prove it in court.

What if my spouse wasn’t fully transparent when we created our prenup?

The second common reason a prenup could be considered invalid is if it’s unconscionable. This typically happens when one spouse, with more wealth, is not fully transparent about their assets.

For the prenup to be invalid, it must be unconscionable and fulfill the following terms:

• One party was not provided fair disclosure of the other’s property
• One party did not voluntarily and explicitly waive their rights to disclosure of this property
• One party did not have, and could not have had, an understanding of the other’s property

For example, I worked with a woman last year who believed her prenup was invalid because her husband had hidden millions of dollars in an undisclosed account when they created their prenup. His net worth was about 20 million dollars more than he’d claimed it to be.

In the prenup, the wife had been contracted one million dollars upon divorce, which the court ultimately found to be unconscionable. The prenup was ruled invalid because she was not provided a fair and reasonable disclosure of her (ex) husband’s worth; she did not explicitly waive her rights to his full worth; and she did not know, nor could she have known, about her husband’s assets.

For your prenup to be valid, you must disclose all of your assets and financial obligations with full transparency. When creating your prenup together with us at Stern Perkoski Mendez, we’ll ensure that both you and your future spouse are incredibly thorough and don’t run into problems down the line.

I waived alimony, but now I need my spouse’s support. What can I do?

Your prenup, or part of your prenup, can also be ruled invalid if it waived spousal support (also known as alimony or maintenance), and this would cause you undue hardship because of circumstances unforeseeable at the time of your prenup’s creation. If you’re facing undue hardship because of a situation such as this, it’s likely the court will waive the clause in your prenup that denies you spousal support. Thus, your spouse will need to provide maintenance.

Undue hardship must be something more serious than a reduction in income or lifestyle—it must be a risk of abject poverty.

Some clients have wondered if having kids is enough for the court to waive the maintenance clause of their prenup. Because having children is a foreseeable event within a marriage, the court wouldn’t consider this circumstance a reason to award maintenance.

In contrast, if you have a child with disabilities who requires special care, time and resources, the court is more likely to waive the initial clause in your prenup and require that your spouse provide support.

If you are facing undue hardship because your prenup waived maintenance, we can review your case and help you reclaim alimony in court.

Contact Our Divorce and Family Law Firm in Evanston, Chicago, Lake Forest and Oak Brook

If you think your prenup is invalid—or you’re in the process of creating one and want to ensure it remains valid—our team is available to help you navigate the process. Request a free consultation or call us at (847) 868-9584. We will happily meet with you at our offices in Evanston, Chicago, Lake Forest and Oak Brook, or at another location.

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