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Four Reasons Your Prenuptial Agreement May Not Be Enforced

Posted on in Family Law

b2ap3_thumbnail_prenuptial-agreement4_640.jpgWith many Americans waiting longer than ever before to get married for the first time and the rise in the rate of second and third marriages, prenuptial agreements have become increasingly common across the country. You may be wondering what age and remarriage have to do with prenuptial agreements, and the answer is relatively simple. Those who get married at a later age—those getting married for the second or third time are older than they were when they first got married—tend to bring more with them into their new marriage. “More” refers to not only property and debts but also to children, previous spousal maintenance obligations, and other concerns.

With all of the potential considerations, it makes sense that individuals considering marriage would look to protect themselves by drafting a prenuptial agreement. If it is not executed properly, however, your prenuptial agreement may not stand up to challenges in court, making it essentially unenforceable and leaving you possibly unprotected.

The most common reasons that a divorce court court set aside a prenuptial agreement include:

  • Fraud or lack of full disclosure: Each party to a prenuptial agreement has the right to a full financial disclosure from the other party. The right can be waived, but doing so is not usually advisable. If your spouse “forgot” about certain assets or debts, your agreement was not based on all of the available information and may be held as invalid;
  • Coercion or duress: You should only sign a prenuptial agreement because you want to do so not because you are being forced. Threats of physical violence or impairment by drugs or alcohol may be sufficient grounds to have your agreement deemed unenforceable. If your spouse simply threatens to cancel the wedding, however, it is not usually considered coercion;
  • Lack of proper counsel or consideration: Although it is not expressly required by Illinois law, each spouse should have a separate attorney review the agreement before it is signed. If one spouse retains an attorney and the other does not, the spouse without an attorney may be at risk. Each party should also be granted sufficient time to read and understand the document;
  • Unconscionability: Your prenuptial agreement may also be deemed unenforceable if the terms of the agreement are too one-sided in the opinion of the court. For example, if following your agreement would leave you destitute while your spouse enjoyed a wealthy, comfortable lifestyle, the court may intervene and set aside the agreement.

Get Help With Your Prenuptial Agreement

If you are considering marriage and feel that a prenuptial agreement is necessary to protect your interests, contact an experienced Kane County family law attorney for assistance. At our law firm, we are equipped to help you develop an equitable agreement that will withstand potential challenges in the future. Call 847-426-1866 or 630-945-8807 for confidential consultation today.

 

Sources:

http://www.foxbusiness.com/features/2013/07/11/questions-youre-embarrassed-to-ask-about-prenups.html

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59

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

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