Posted on February 6, 2022

Choice Of Law In Illinois Prenuptial Agreements

Nothing pours cold water on the hopes and dreams of an upcoming wedding ceremony like a prenuptial agreement. Prenuptial agreements are not fun to think or talk about. A prenuptial agreement literally anticipates a divorce…which is awful.

Still, a prenuptial agreement may save both you and your soon-to-be-spouse headaches and heartaches. A prenuptial agreement that specifies that Illinois law will be applied in any enforcement action can virtually guarantee the result in any possible divorce.

If You Get Divorced In Illinois Without A Prenuptial Agreement

Whether you know it or not, if you live in Illinois you already have a prenuptial agreement. If you don’t have a prenuptial agreement and you get divorced in Illinois, you have a default prenuptial agreement in the Illinois Marriage and Dissolution of Marriage Act(IMDMA). The IMDMA gets modified all the time by the Illinois legislature and by Illinois case law decisions which determine the IMDMA’s interpretation. You will never know what the IMDMA will contain on the day of your divorce filing…until it is too late.  

Even if you divorce without a prenuptial agreement, Illinois law allows individual judges enormous leeway to make decisions about you and your spouse’s life.

“[T]he trial court possesses the inherent authority to control…the course of litigation” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007)

In Illinois, marital assets are NOT divided 50/50. In Illinois, marital assets are divided equitably.

“The Act does not require an equal division of marital property, but an equitable division” In re Marriage of Jones, 543 NE 2d 119 – Ill: Appellate Court, 1st Dist. 1989

“Equitable” means “Just, fair, and right, in consideration of the facts and circumstances of the individual case.” Black’s Law Dictionary (10th ed. 2014)

Maintenance, formerly known as alimony, is determined by a formula under the IMDMA: 33% of the big earner’s gross income less 25% of the small earner’s gross income, not to exceed 40% of the gross total incomes of both parties.

The IMDMA does not require Illinois divorce judges to apply those guidelines if the judge does not find the guidelines to be fair in the case at hand.

“Only if the court finds that a maintenance award is appropriate, the court shall order guideline maintenance in accordance with paragraph (1) or non-guideline maintenance in accordance with paragraph (2)” 750 ILCS 5/504(b-1)

Paragraph 2 then specifies that the court need only have a reason, any reason, to waive guidelines maintenance.

“Any non-guidelines award of maintenance shall be made after the court’s consideration of all relevant factors” 750 ILCS 5/504(b-1)(2)

Without a prenuptial agreement you are exposed to the whims of the Illinois legislature, the hundreds of judges who modify the interpretation of the IMDMA and the individual judge who will rule on your possible divorce case in the future.

If You Get Divorced In Illinois With A Prenuptial Agreement

In Illinois, prenuptial agreements are called “premarital agreements.”

“”Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” 750 ILCS 10/2(1)

“The Illinois Premarital Agreement Act allows parties to waive or modify their marital rights by entering into a valid premarital agreement, with limited grounds provided to find the agreement to be unenforceable…By entering into a valid premarital agreement, parties agree that their enumerated rights at dissolution are no longer governed by applicable statutes where those rights are validly modified or waived in the agreement.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018

Prenuptial agreements in Illinois will be enforced by an Illinois court of law.

“Agreements regarding the disposition of property and maintenance are binding upon the court unless they are found to be unconscionable.” In re Marriage of Hightower, 358 Ill. App. 3d 165, 171 (2005)

“The law favors the amicable settlement of property rights in marital dissolution cases and all presumptions are in favor of the validity of the agreement” MARRIAGE OF PRILL v. Prill, 2021 IL App (1st) 200516 – Ill: Appellate Court, 1st Dist., 6th Div. 2021

There is only two ways a prenuptial agreement will not be enforced in Illinois: if the prenuptial agreement involuntary or unconscionable.

“(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily; or

(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.” 750 ILCS 10/7(a)

While the statute references fairness an “unfair” prenuptial agreement will be upheld in Illinois.

“[N]ot fair does not equal unconscionable if, in fact, [the spouse] knew what [they were] doing.” MARRIAGE OF PRILL v. Prill, 2021 IL App (1st) 200516 – Ill: Appellate Court, 1st Dist., 6th Div. 2021

Invalidating a prenuptial agreement in Illinois is a herculean task. “[A]…agreement is unconscionable if there is an absence of a meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”   In re Marriage of Callahan, 2013 IL App (1st) 113751, ¶ 20.

There’s always a meaningful choice: you can sign the prenup OR not get married.

The only realistic way to invalidate a prenuptial agreement is to allege that you “[were] not provided a fair and reasonable disclosure of the property or financial obligations of the other party” 750 ILCS 10/7(2)(ii)

Any good Illinois prenuptial agreement will have a waiver clause. Prenuptial agreements are enforceable unless a spouse “did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided” 750 ILCS 10/7(2)(iii)

So, an Illinois prenuptial agreement with a disclosure waiver clause will be, effectively, unbreakable.

This means it is highly advisable to get a prenuptial agreement based on Illinois law no matter where you might live in the future.

Prenuptial Agreements And Divorces Outside Of The State Of Illinois

Divorce works completely different from state to state. If you or your spouse move in the future and establish residency in a different state, either of you can file in that state and then be subject to that state’s divorce laws.

I am also licensed in Florida and I can assure you that divorce works completely differently in Florida.

In Florida, Marital assets must be split 50/50 or the judge must make a written finding as to why there was an unequal division of assets.

In Florida, assets that are exclusively in one person’s name may turn into marital assets through possible contribution by the other spouse. So, if there was a premarital property where the other spouse helped pay the mortgage…or just contributed to the groceries freeing up money for the mortgage, that spouse will now have a marital claim on the premarital property.

Alimony in Florida has no formula whatsoever. Alimony is based purely on one spouse’s alleged needs versus the other spouse’s alleged ability to pay.

Furthermore, Florida’s divorce statutes are relatively brief and are modified constantly by thousands of case law decisions.

There are 48 other states with their own rules and procedures for divorce which impact the outcome of a divorce in ways we can’t even imagine…until it is too late.

But, if you have a prenuptial agreement, you can decide in advance which state’s law you’ll be applying if you get divorced.

“The rules governing the interpretation of contracts apply to the interpretation of prenuptial agreements.” In re Marriage of Drag, 762 NE 2d 1111 – Ill: Appellate Court, 3rd Dist. 2002

“Parties to a premarital agreement may contract with respect to:

the choice of law governing the construction of the agreement” 750 ILCS 10/4

A prenuptial agreement can include a choice of law provision that can read as follows: “Choice of Law and Venue. This Agreement shall be governed by and construed according to the laws of the State of Illinois, without giving effect to its choice of law principles. “

“Generally, choice of law provisions will be honored.” Belleville Toyota v. Toyota Motor Sales, 770 NE 2d 177 – Ill: Supreme Court 2002

If you get divorced in another state and your prenuptial agreement has a choice of law clause that specifies that the law of Illinois will be used for the purposes of enforcement…that prenuptial agreement is going to be enforced pursuant to Illinois’s extremely strong bias towards strict enforcement of prenuptial agreements.

Practically, an out-of-state judge is not going to be thrilled to have to learn Illinois law in order to apply Illinois law. Instead, they are going to be inclined to lean on your representation that invalidating an Illinois prenuptial agreement is almost impossible. Failing that, you could hire an Illinois family law attorney to serve as an expert witness to tell the out-of-state judge exactly that (hint. hint. maybe hire one that writes clearly on the subject). A quick declaratory judgment later, your entire divorce will be decided.

Prenuptial Agreements And Choice Of Venue

You can agree to only pursue your divorce in an Illinois court if one of the parties is an Illinois resident.

“[B]ecause the…agreement that Illinois would be the forum for all post-dissolution matters as long as [one party] remained here….[a] motion to transfer jurisdiction [will be denied]. In re Marriage of Hilliard, 533 NE 2d 543 – Ill: Appellate Court, 3rd Dist. 1989

While you can choose which state’s laws will apply to your divorce, you cannot choose to only divorce in one particular state or county if you have children.

The “agreement of the parties on the forum should not be allowed to govern the choice of forum in a custody contest when the court is significantly handicapped in making the proper decision and in determining the best interest of the child.” In re Marriage of Walker, 678 NE 2d 705 – Ill: Appellate Court, 1st Dist., 4th Div. 1997

What If There Is No Choice Of Law Clause In A Prenuptial Agreement?

If a prenuptial agreement manages to be both valid and not have a choice of law clause, the prenuptial agreement will be reviewed pursuant to the laws of whatever state the divorce is filed in.

“Absent an express choice of law, [contracts] are generally governed by the location of the subject matter, the place of delivery of the contract, the domicile of the insured or of the insurer, the place of the last act to give rise to a valid contract, the place of performance, or other place bearing a rational relationship to the general contract.” Lapham-Hickey Steel v. Protection Mut. Ins., 655 NE 2d 842 – Ill: Supreme Court 1995

If you are getting married and you are considering a prenuptial agreement get a prenuptial agreement with an Illinois choice of law clause and a disclosure waiver. Then you will truly know that you are protected in the case of divorce. Contact my Chicago, Illinois family law firm today to learn more.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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