What's Mine Is Mine

Almost no contract is completely ironclad; there is nearly always at least one loophole that can be located and exploited. Although Illinois family law follows this general rule, most judges will enforce premarital agreements, absent extraordinary circumstances.

The existing tendency to enforce these contracts became even more pronounced in 1990, when Illinois adopted the Uniform Premarital Agreement Act. In so doing, the Legislature eliminated a common-law requirement that the agreement be “fair and reasonable.” Now, it is much more difficult, though certainly not impossible, to overturn a premarital agreement.

Was The Agreement Involuntary?

To overturn part of an agreement, the challenging party must prove that it was not voluntary or unconscionable when made. If the challenge is successful, the offending portion of the agreement will be removed and the remainder will stand. Partial invalidity does not invalidate the entire document.

In terms of voluntariness, the bar is set very high. In most cases, there must be a level of coercion that borders on the use of physical force; even something like a sign-or-else ultimatum is insufficient. Some states, including California, set out a list of factors to consider in this area. But in Illinois, the matter is almost entirely discretionary.

Was The Agreement Unconscionable When Made?

“Unconscionable” is not defined in the law; a plain meaning of the word is something that shocks the conscience; for example, a 60-40 split is uneven but clearly not unconscionable. To win an unconscionability argument, the challenging party must also prove:

  • No Disclosure: The drafting party must have either provided no financial disclosure whatsoever or provided one that intentionally omitted key assets. If the challenging party waives disclosure, that act must be in writing.
  • Inadequate Knowledge: In addition to an actual lack of knowledge about marital assets, the challenging spouses must generally prove that they would have been unable to attain such knowledge.

So, to overturn a premarital agreement based on unconscionability, the division must be manifestly unfair and the challenging spouse must have had little or no idea about what he or she was signing.

It is difficult, but not impossible, to overturn a premarital agreement in Illinois. For a confidential consultation, contact an experienced Naperville family law attorney. After hours appointments are available.


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