Largely because the law changed in January of 2016 and the Uniform Premarital and Marital Agreements Act, which Illinois and most other states have adopted, ironed out many of the differences in state laws, more people than ever are making property agreements before they get married. These pacts can cover non-property division areas as well, such as inheritance and spousal support matters. With the uptick in agreements, there is also an uptick in the number of spouses who want to invalidate these contracts.
Essentially, prenuptial agreements are invalid if they are involuntary or unconscionable, and both those words have specific meanings in Illinois family court.
Involuntary
In many other states, premarital agreements are involuntary as a matter of law, or at least presumptively invalid, if the challenging spouse did not have a lawyer. As a general rule, Illinois family law judges are more sympathetic to challenging spouses who were unrepresented when they signed, but there is no per se rule.
Instead, involuntariness is a rather subjective standard that is defined as “a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive [a spouse] of the exercise of free will.” In other words, mere pressure to sign is not enough because to successfully overturn premarital agreements as invalid, challenging spouses must not only convince judges that they felt undue pressure, they must also show that the other spouse acted wrongfully in a borderline criminal way.
One of the most recent cases on this subject is 2001’s In Re Marriage of Barnes. Wife claimed that Husband delivered a classic “sign-or-else” ultimatum shortly before the wedding. At the same time, however, Wife admitted that Husband provided a full disclosure of all his assets and that her attorney reviewed the agreement before she signed it. Moreover, Wife was completely self-sufficient at the time and therefore felt no economic pressure to sign.
After reviewing all these facts, the court concluded that she had “come forth with no evidence to create a genuine issue of material fact that would controvert the voluntary nature of the Agreement.”
As to what does constitute involuntariness, Barnes makes the following suggestions:
- Substantial financial disparity between the parties,
- Less than complete disclosure, and
- Extraordinary pressure to sign (e.g. presenting the agreement to the other spouse just a few days before the wedding).
Involuntariness is easier to prove now than it was before. In a 1962 case, the court did not find involuntariness even after the bride essentially blackmailed the groom.
Unconscionable
An agreement must be more than grossly one-sided to be unconscionable, as there must also be an element of coercion. In Re Marriage of Gurin (1991) is one of the leading cases in this area, and in it the court laid out a multi-point test to determine unconscionability:
- Oppressive one-sidedness,
- Inadequate financial disclosure from the other spouse,
- No effective waiver of disclosure, and
- Inadequate knowledge about the other party’s finances.
The UMPAA adds an additional requirement, viz, the agreement must be unconscionable at the time it was made. This rule sometimes applies if one spouse gives up rights to a portion of stock options that later become unbelievably valuable.
Contact Experienced Attorneys
Premarital agreements are difficult, but not impossible, to overturn. For a confidential consultation with an aggressive family law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Clem Onojeghuo)