Posted on May 14, 2023

Does My Fiancé(e) Need An Attorney To Review A Prenuptial Agreement in Illinois?

Hiring an attorney before signing a prenuptial agreement in Illinois is not necessary. However, it is a good idea to hire an attorney before entering into a life-altering document…but what could be less romantic on the cusp of a wedding date?

A prenuptial agreement in Illinois has formalities that must be observed.

“A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.” 750 ILCS 10/3

That’s it. The Illinois Uniform Premarital Agreement Act makes nomention of whether a party needs an attorney or not to enter into a prenuptial agreement in Illinois.

“[T]here is no requirement that the parties to an [pre]nuptial agreement be represented by an attorney.” In re Marriage of Sokolowski, 597 NE 2d 675 – Ill: Appellate Court, 1st Dist., 2nd Div. 1992

“The receipt of advice from independent counsel might be relevant to the issue of voluntary execution but is not required.” J. Thomas Oldham, With All My Worldly Goods I Thee Endow, or Maybe Not: A Reevaluation of the Uniform Premarital Agreement Act After Three Decades, 19 Duke Journal of Gender Law & Policy 83-131 (Fall 2011)

However, just because a prenuptial agreement is signed does not mean it is enforceable.

Is A Prenuptial Agreement That Was Not Reviewed By An Attorney Enforceable In Illinois?

To be enforceable, a prenuptial agreement in Illinois must have been entered into voluntarily.

“(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” 750 ILCS 10/7(a)

If a party had an attorney who reviewed the prenuptial agreement’s clauses, it would be very difficult to allege that the prenuptial agreement was not entered into voluntarily.

“Where the parties entered into an [pre]enuptial agreement absent fraud, duress or coercion, the agreement is valid and enforceable.” In re Marriage of Murphy, 834 NE 2d 56 – Ill: Appellate Court, 3rd Dist. 2005

Allegations of coercion must be proven otherwise the prenuptial agreement will be enforced.

In Warren v. Warren, the wife, Marcia, signed the prenuptial agreement in her future husband’s office a few months before the wedding in front of the future husband’s staff. The wife later claimed she was coerced into signing the prenuptial agreement.

The court found that there was no coercion based on the circumstances.

“Although Marcia claims that she entered into the agreement under conditions of stress and coercion, the record shows (1) that Marvin encouraged her to seek independent legal counsel, (2) that the marriage did not take place until about two months after the agreement was executed, and (3) that Marcia appeared to be in good spirits at the time of execution. Under these circumstances, the circuit court properly could have found that the agreement was made in the absence of duress or coercion.” Warren v. Warren, 523 NE 2d 680 – Ill: Appellate Court, 5th Dist. 1988

Marcia also claimed she did not understand the prenuptial agreement.

“Although Marcia claims that she did not understand the precise terms of the agreement when she signed it, or know the full extent of Marvin’s financial holdings, the record shows (1) that she had ample opportunity to seek legal counsel between the time of execution and the marriage, (2) that Marcia had the agreement explained to her prior to signing it, and (3) that Marcia was not inexperienced in the ways of the business world.” Warren v. Warren, 523 NE 2d 680 – Ill: Appellate Court, 5th Dist. 1988

If you sign a document, you are bound by the terms of that document…whether you have a lawyer or not.

The real issue with having no attorney when signing a prenuptial agreement is procedural unconscionability.

“Procedural unconscionability is some impropriety during the process of forming the contract depriving a party of a meaningful choice. Procedural unconscionability refers to a situation where a term is so difficult to find, read, or understand that the plaintiff cannot fairly be said to have been aware he was agreeing to it, taking into consideration the disparity of bargaining power between the drafter of the contract and the party claiming unconscionability. Factors to be considered in determining whether an agreement is procedurally unconscionable include all of the circumstances surrounding the transaction, the manner in which the contract was entered into, whether each party had a reasonable opportunity to understand the terms of the contract, and whether important terms were hidden in a maze of fine print.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018 (citations omitted)

Can You Hire A Lawyer For Your Future Spouse To Review The Prenuptial Agreement You Have Prepared?

It is not uncommon for the fiancé{e}with the greater assets and income to propose a prenuptial agreement. Along with proposing and preparing that prenuptial agreement, the monied fiancé(e) will also usually suggest and pay for their fiancé(e)s attorney.

When a lawyer is hired by another person the lawyer must carefully observe the Rules Of Professional Conduct by having the client acknowledge that their future spouse is paying for the prenuptial agreement review.

“A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.” Ill. Sup. Ct. R. 1.8(f)

Despite the informed consent required, does suggesting and paying for a fiancé(e)s prenuptial agreement attorney create a conflict?

In the case of In Re Marriage of Drag, Tom Hogan was Raymond Drag’s last divorce attorney. Raymond gave his fiancée, Johane, Tom Hogan name to review the proposed prenuptial agreement. Johane hired Tom Hogan. Later, Johane claimed Tom Hogan’s representation created a conflict which should invalidate the prenuptial agreement. On balance, after considering all the facts, the court deemed Raymond’s hiring of Tom Hogan to represent his future wife acceptable.

“Hogan’s advice to Johanne was not tainted by his previous relationship with Raymond. Ideally, an attorney representing a wife in a pre-nuptial agreement should not have had the husband as a former client. However, Johanne was given the names of two other attorneys and chose Hogan even though she knew that he had represented Raymond in the past. Additionally, Hogan received a waiver from Raymond so that he could discuss Raymond’s assets with Johanne. Hogan also advised Johanne several times that the agreement was not generous and that she should postpone the marriage until he could negotiate better terms. Johanne declined that advice. For these reasons, we find that Hogan’s previous relationship with Raymond did not invalidate the pre-nuptial agreement.” In re Marriage of Drag, 762 NE 2d 1111 – Ill: Appellate Court, 3rd Dist. 2002

In re Marriage of Woodrum, Greg Woodrum hired Don Weston to represent his fiancée, Jennifer. Jennifer claimed that she thought Don Weston was Greg’s attorney even after meeting with Weston. The court did not care about her confusion or the possible conflict of Greg hiring Jennifer’s attorney.

“Even if Jennifer did not know Weston was representing her, she had time before executing the agreement to seek out legal advice from an attorney of her choosing, which she did not do. We acknowledge that Weston did not have Greg’s written disclosure when reviewing the premarital agreement with Jennifer. However, Jennifer had a reasonable opportunity to seek out Weston’s counsel, or the counsel of another attorney, upon subsequently receiving the disclosure. Thereafter, even after executing the agreement on June 13, 2007, Jennifer had over two weeks prior to the wedding to review the agreement and seek legal advice or modification of the terms, which she did not do, before marrying Greg. See 750 ILCS 10/5 (West 2016) (a premarital agreement becomes effective upon marriage). Jennifer was free to choose to remain single rather than sign the agreement.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018

In reality, most lawyers will advise their clients to not sign a prenuptial agreement. After all, they are giving up their rights with little in return beyond getting married. If a person signs a document after a lawyer advises them and especially after a lawyer says “don’t sign that document” they must really want to enter into that agreement.

A Prenuptial Agreement is A Contract!

“A premarital agreement is a contract, and the rules of contract construction apply in interpreting such agreements.” In re Marriage of Heinrich, 7 NE 3d 889 – Ill: Appellate Court, 2nd Dist. 2014

If you sign a contract without reading the contract, the contract is presumed to be valid….whether you read the contract or not.

“[T]here is generally little that courts can do to protect persons who are prone to signing contracts without reading them from the natural consequence of their folly, the law being that a party who is afforded an opportunity to read a contract prior to signing but signs the contract without reading it, cannot be heard to say that he was deceived as to its contents.” Hintz v. Lazarus, 58 Ill. App. 3d 64, 66, 15 Ill.Dec. 546, 373 N.E.2d 1018 (1978)

If an unread contract is valid, then a prenuptial agreement that was not reviewed by an attorney most certainly is valid.

Can You Depose A Spouse’s Attorney Later To Ask About The Spouse’s Understanding Of The Prenuptial Agreement?

Despite all of the above details regarding a lawyer not mattering as to whether an Illinois prenuptial agreement is valid or not…a spouse may wish to question their spouse’s lawyer in a deposition to verify that the prenuptial agreement was signed voluntarily.

A lawyer disclosing a client’s possible understanding is a violation of attorney-client confidentiality.

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent” Ill. R. Prof’l Conduct R. 1.6 (eff. Jan 1, 2016)

The lawyer representing the party challenging the prenuptial agreement should object. The lawyer who originally advised on the prenuptial agreement should object.

Be realistic. No one remembers how people reacted years ago to something as boring as a contract review.

“[N]either [the lawyer nor the spouse] could recall any of the specifics of the conversations they claimed to be privileged. All of the questions tendered were answered with the witnesses professing a lack of recollection. No allegedly privileged information was revealed.” In re Marriage of Barnes, 755 NE 2d 522 – Ill: Appellate Court, 4th Dist. 2001

If you are about to get married, congratulations. If you are also about to sign a prenuptial agreement, do yourself a favor and hire everyone an attorney. Attorneys will eliminate the entire issue of voluntariness. Attorneys will save you from the headaches the prenuptial agreement was supposed to solve. Contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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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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