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Ensuring the Validity of Your Prenuptial Agreement

Posted on in Family Law

b2ap3_thumbnail_prenuptial-agreement6_640.jpgIn this day and age, more and more couples are signing prenuptial agreements before they wed to safeguard their own interests if the marriage fails. The mere act of creating a document like a prenuptial agreement is not sufficient to ensure its validity, however; certain provisions in the document can actually render the entire agreement null and void. Doing some research can help ensure that yours remains valid.

A Change in Property Distribution Rules

While prenuptial agreements—also known as prenups—have become more popular in general, Illinois law has helped contribute to a specific uptick in their use. Before the substantial reforms to the Illinois Marriage and Dissolution of Marriage Act (IMDMA) which took effect in January of last year, property purchased “in contemplation of marriage” was normally held to be marital property and, therefore, subject to the state’s equitable distribution laws. After modification, this was changed significantly, with the law holding that just because property was purchased or received in contemplation of marriage, it did not make that property marital. Thus, a private agreement is often necessary in order to equitably distribute such property.

This example also illustrates that couples choosing to execute prenups must stay on top of changes in the law. Generally, if property is distributed in a prenup and the arrangement does not go against public policy, Illinois courts will allow the allocation to proceed as agreed. If, however, a party tries to distribute property that he or she has no right to distribute or dispose of matters like child custody or support in a prenup, the clause will be set aside. In some situations, the entire document may be held to be null and void.

Duress, Coercion, and Fraud

The most common reasons for prenuptial agreements to be declared invalid are duress—also called coercion—and outright fraud. Duress is best described as pressure, and generally involves statements that can be reasonably interpreted as threats. However, threats of refusing to go through with the marriage are generally not sufficient in Illinois to be able to claim duress; the bar is usually much higher. For example, not being granted sufficient time to have the document reviewed by an attorney before a signature is demanded is often held to be sufficient coercion to render the prenup invalid.

Fraud is easier to determine in most cases as it most often involves false or incomplete financial information or another lack of disclosure of information held to be integral. Illinois law on prenuptial agreements provides that there must be full disclosure before an agreement may be considered valid. If there is not, then the unaware party does not have sufficient information upon which to make a valid choice. Illinois courts will not only invalidate fraudulent prenuptial agreements but they may penalize the offender as well, depending on the nature and degree of fraud.

Ask a Legal Professional for Help

While many people believe that a prenuptial agreement is valid as soon as it is signed, this is not always the case. If you have any doubts about the validity of yours, consulting a knowledgeable attorney can help set your mind at ease. Contact an experienced Kane County prenuptial agreement lawyer to discuss your situation. Call 847-426-1866 or 630-945-8807 to speak with a member of the team at Pucci Pirtle today.

 

Sources:

http://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&

Kane County Bar Association Illinois State Bar Association McHenry County Bar Association

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