I was at a gathering earlier this week where I walked in on a conversation about prenuptial agreements. There was some debate in the group over whether one could get out of such an agreement.
Almost any contract contains language that provides for termination. And contract law in every state illustrates the types of contract provisions which are deemed unconscionable or otherwise unworthy of being enforced. Most lawyers are able to seek a way out if a party wants out of such a contract. But what about prenuptial agreements?
According to Deborah A. Carder, an attorney at Schiller, DuCanto & Fleck, LLP, a Chicago area family law firm that focuses on high-end divorces and dissolutions, the first step to take in considering the invalidation of a prenuptial agreement is to look at the date the agreement was entered. See Carder’s post here.
A prenuptial agreement signed prior to 1990 will be upheld so long as:
- It does not create an unforeseen state of poverty.
- Both parties had full knowledge of the other’s finances prior to signing.
- It was entered into voluntarily.
- The agreement is fair and reasonable at the time of enforcement of the agreement.
The provisons of state law governing prenuptial agreements from 1990 forward are more stringent – now it does not matter if the agreement was fair and reasonable. See Illinois Uniform Premarital Agreement Act, 750 ILCS 10. According to Carder:
A party seeking to invalidate a post-Act agreement must prove only that (1) he or she did not sign the agreement voluntarily, or (2) that at the time of execution, the agreement was unconscionable, meaning that it was improvident, totally one-sided, or oppressive, and that party neither was given a fair and reasonable disclosure of the property or financial obligations of the other party waived the right to the disclosure.
In prenups from 1990 forward, even unconscionable terms in an agreement will not automatically mean the contract or the specific provisions will be invalidated.
Do you have a prenuptial agreement? Have you looked at its terms lately?