Challenging a Prenuptial Agreement in Illinois

Most family court judges uphold the agreements between parties to the greatest extent possible, provided that the agreements fall within certain parameters. However, just because a person's signature appears on a written document, or assent is given to an oral agreement, does not mean that the pact was entered into voluntarily and knowingly. What must a spouse prove to render a premarital agreement unenforceable?

Setting Aside a Prenuptial Agreement

In terms of voluntariness, most Illinois courts require some sort of physical coercion to set aside the prenuptial agreement. In fact, Illinois courts have specifically held that a “sign or else” ultimatum is not coercive. Courts in nearby states have made similar rulings regarding the bride's pregnancy and the sudden appearance of a premarital contract.

While it is almost impossible to prove coercion, the second possibility – that the agreement was unconscionable when made – is not as difficult to establish.

The first point is that the agreement must be unconscionable “when made.” Although it took place in California, the Frank and Jamie McCourt divorce is a good example of this concept. Ms. McCourt agreed to relinquish her ownership share in the Los Angeles Dodgers for pennies on the dollar, at a time when the franchise's value was extremely low. Later, when Mr. McCourt sold the resurgent team for a record amount, Ms. McCourt could not prove that the contract was unconscionable at the time she signed it.

In Illinois, unconscionability also has an objective element. In addition to unfairness, challenging parties must prove that they did not:

  • Waive, in writing, the right to a full property disclosure,
  • Have an adequate knowledge about the amount of property, and
  • Receive a fair and reasonable disclosure of the other party's property or financial obligations.

In other words, the judge will probably uphold the agreement if the non-challenging spouse can show any fault on behalf of the signing spouse.


Although prenuptial agreements can limit the amount, duration, or frequency of maintenance payments, such limitation cannot create an “undue hardship.” The same Illinois court which ruled that an ultimatum was not coercive also ruled that a spouse's reduction from a “lifestyle of luxury” to a $24,000 annual salary was not an undue hardship.

The best approach in premarital agreements is to have aggressive representation at the time it is signed. For a free consultation in this area, contact an experienced Naperville family law attorney. After-hours appointments are available.


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