In the movie, “Intolerable Cruelty,” George Clooney play Miles Massey, a divorce lawyer who had crafted “the Massey pre-nup” a prenuptial agreement template that had never been successfully challenged. While such an agreement may sound mystical, unchallengeable prenuptial agreements get written every day…so long as they have the right clauses.
One of the most important clauses in a prenuptial agreement is a “waiver of disclosure.”
What Is A Waiver Of Disclosure In An Illinois Prenuptial Agreement
A waiver of disclosure typically reads as follows:
“Waiver of additional financial information. The parties hereto each voluntarily and expressly waive any right to disclosure of the property, financial position or obligations of the other beyond the disclosures provided herein and by the attachments hereto.”
The reason that a waiver of disclosure must be included is that failure to properly disclose financial assets can render a prenuptial agreement void in Illinois.
“(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” 750 ILCS 10/7(a)(2)(i)
It makes sense that a person getting married should at least know what assets they are agreeing to NEVER have a claim to by signing a prenuptial agreement.
The disclosure is usually a referenced exhibit on the prenuptial agreement. The exhibit is simply a list of the parties assets with associated estimated values of each asset.
Waiving The Disclosure Of Assets In An Illinois Prenuptial Agreement
The right to be “provided a fair and reasonable disclosure of the property or financial obligations of the other party” can be waived by agreement.
An Illinois prenuptial agreement without property disclosure is only void if it “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(a)(2)(iii)
“Under the Illinois Premarital Agreement Act, the only way that [the petitioner] could have been relieved of his statutory obligation of providing a fair and reasonable disclosure was by [the respondent] voluntarily and expressly waiv[ing], in writing, any right to disclosure of the property or financial obligations of [the respondent] beyond the disclosure provided…[E]ach party to a premarital agreement has a statutory obligation to disclose their property and financial obligations, which cannot be waived without an express waiver, in writing” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018
A party seeking to declare an Illinois prenuptial agreement void may claim that they now believe their spouse never properly disclosed all of their assets before they signed the prenuptial agreement. The lack of disclosure could mean that the complaining party was tricked into signing a prenuptial agreement.
A Waiver Of Disclosure Should Prevent All Future Discovery In An Illinois Divorce
In order to prove relevant assets were not disclosed, the party trying to void the prenuptial agreement will issue discovery to prove that their spouse, in fact, had additional non-disclosed assets.
Typically, “a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action[.]” Ill. Sup. Ct. R. 201(b)(1)
This request for years-old discovery poses a massive problem for the party trying to enforce the prenuptial agreement. Discovery is extremely time consuming and expensive which is exactly what the prenuptial agreement was designed to avoid.
The party seeking to enforce the prenuptial agreement should object to any additional discovery as being irrelevant.
“Although the scope of permissible discovery is indeed broad, it is not unlimited; the court, in exercising its discretion, must balance”the needs of truth and excessive burden to the litigants.” Y-Not Project, Ltd. v. Fox Waterway Agency, 50 NE 3d 42 – Ill: Appellate Court, 2nd Dist. 2016 (citations and quotations omitted)
If the party seeking to void the prenuptial agreement signed a waiver of disclosure any discovery related to that disclosure is irrelevant.
“The right to discovery is limited to disclosure of matters that will be relevant to the case at hand in order to protect against abuses and unfairness, and a court should deny a discovery request where there is insufficient evidence that the requested discovery is relevant or will lead to such evidence.” In re Estate of Blickenstaff, 980 NE 2d 1285 – Ill: Appellate Court, 4th Dist. 2012 quoting Youle v. Ryan, 349 Ill. App.3d 377, 380-81, 285 Ill.Dec. 402, 811 N.E.2d 1281 (2004)
What if the disclosure was wholly inadequate or full of lies? Can a party try to void a prenuptial agreement based on wrong and/or fraudulent representations of the party’s assets?
No.
“[A] waiver under subsection (a)(2)(ii) can be voluntary even where the other party has disclosed no assets at all.” In re Marriage of Solano, 124 NE 3d 1097 – Ill: Appellate Court, 2nd Dist. 2019
Why Voiding A Prenuptial Agreement Because Of A Failure To Fully Disclose Assets Is Illogical
The strategy of invalidating an Illinois prenuptial agreement because assets were not fully disclosed is absurd.
Any previously undisclosed assets that could be discovered will be presumptively non-marital because it existed before the marriage was signed.
“[T]he following, [shall be] known as “non-marital property”:…property acquired before the marriage” 750 ILCS 5/503(a)(6)
Non-marital property is always awarded to the party who possesses that property.
“[T]he court shall assign each spouse’s non-marital property to that spouse.” 750 ILCS 5/503(d)
Therefore, a party who wants to void a prenuptial agreement by alleging there were undisclosed assets will only discovery assets that they zero right to. In effect, that party wants to void the prenuptial agreement because they do not like the prenuptial agreement.
What If There Was No Waiver Of Disclosure Of Assets In A Prenuptial Agreement
All is not lost if a prenuptial agreement does not have a waiver of disclosure. It is possible that a fiancé(e)’s finances are so enmeshed as to serve as functional disclosure.
An Illinois prenuptial agreement can be voided if a party “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)(iii)
It is easy to imagine a couple who lived together in advance of being married having “adequate knowledge of the property or financial obligations of the other party.”
Prenuptial agreements exist because they work on a consistent basis. Ensure that your prenuptial agreement will be upheld by having one prepared by an experienced Illinois divorce attorney.
Alternatively, attack a prenuptial agreement with the help of an Illinois divorce attorney who knows what makes a prenuptial agreement sufficiently voidable.
