When two people get divorced in Illinois, they follow the procedures of the Illinois Marriage And Dissolution of Marriage Act to determine what will happen to their assets and incomes upon entering the final judgment of dissolution of marriage.

In lieu of following the requirements of the Illinois Marriage and Dissolution of Marriage Act the parties may enter into a prenuptial agreement. A prenuptial agreement effectively says, “should we get divorced, we choose not to follow the default rules set by the Illinois legislature but, rather, follow the rules of this prenuptial agreement.”

More specifically the Illinois statute governing prenuptial agreements reads “Parties to a premarital agreement may contract with respect to: (1) the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located; (2) the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; (3) the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event; (4) the modification or elimination of spousal support; (5) the making of a will, trust, or other arrangement to carry out the provisions of the agreement; (6) the ownership rights in and disposition of the death benefit from a life insurance policy; (7) the choice of law governing the construction of the agreement; and (8) any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.” 750 ILCS 10/4(a)

“By entering into a premarital agreement under section 4, the parties…agreed that their enumerated rights at dissolution are no longer governed by statute to the extent that they are validly modified or waived in their agreement.” In Re Marriage of Best 228 Ill. 2d 107, 117 (Ill. 2008)

A prenuptial agreement may have been signed months ago or it may have been signed 20 years ago.  There may have been lawyers who negotiated the agreement and confirm its validity.  Despite all this, no prenuptial agreement has a rock-solid guarantee that it will be enforced by Illinois courts.

So, if a prenuptial agreement exists and the parties do file for divorce, the very first question is “what rules are we following, here, in this divorce?  The prenuptial agreement’s rules or the Illinois Marriage and Dissolution of Marriage Act’s rules?”  Obviously, everything in the divorce will flow from how that question is answered.

One of the parties to the divorce may file a motion for declaratory judgment to determine if the prenuptial agreement will be considered binding for the remainder of the case.
735 ILCS 5/2-701 of the Illinois Code of Civil Procedure provides that “The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, …including the determination, at the instance of anyone interested in the controversy, of the construction of any…contract or other written instrument, and a declaration of the rights of the parties interested.”

This initial step of “determination of the construction of any contract” is so important that it can even be appealed right away if one party finds that the trial court erred in its ruling of declaring the prenuptial agreement as valid or invalid.  “[A] reviewing court may consider the validity and effect of a declaratory judgment order in a dissolution proceeding, even if it is entered before the final dissolution order” In Re Marriage of Best 228 Ill. 2d 107, 118 (Ill. 2008)

The trial court will determine if the premarital agreement is enforceable based on the Illinois Uniform Premarital Agreement Act which reads:

“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.
(b) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid such hardship.
(c) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.” 750 ILCS 10/7

Any of these factors can be the basis for declaring a prenuptial agreement to be unenforceable and thus revert the divorcing parties back to the rules of the Illinois Marriage and Dissolution of Marriage Act.

Each factor is deeply rooted in contract law where numerous cases both within divorce and outside of divorce advise courts on how to rule based on the particular circumstances surrounding the contract (the prenuptial agreement).

To learn more about prenuptial agreements and how to enforce them (or declare them null and void) contact my Chicago, Illinois law office to schedule a free consultation.