Posted on January 23, 2021

Unconscionable Prenuptial Agreements In Illinois

In the lead up to a marriage there is much thought given to how to build a life together but very little thought as to how those intertwined lives would be unwound if there was a divorce.

People entering into a marriage with significant assets always think about how to unwind the marriage…with all their assets in tact. The wealthy are especially nervous about divorce if they’ve been divorced before.

Whether it is to protect assets or to reduce the possible outcomes in a divorce, soon-to-be-married couples enter into prenuptial agreements. Prenuptial agreements or “prenups” are contracts entered into by people contemplating marriage which would govern the terms of their possible divorce.

The prenuptial agreement is almost always drafted by the wealthier spouse and the terms of the prenuptial agreement inevitably benefit that wealthier spouse. At what point is that benefit too extreme for an Illinois court to adopt the prenuptial agreement as an enforceable contract? What makes a prenuptial agreement unconscionable in an Illinois divorce?

What Is A Prenuptial Agreement

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

A prenuptial agreement can cover the following issues:

“(a) 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

The only thing a prenuptial agreement cannot specifically contract for is child support.

“The right of a child to support may not be adversely affected by a premarital agreement.” 750 ILCS 10/4(b)

Because prenuptial agreements may contract on such a broad scope, there is always the possibility that something has been included in the prenuptial agreement that is so blatantly unfair that the prenuptial agreement (or a portion of the agreement) will be held to be unenforceable by an Illinois divorce court.

Contesting a Prenuptial Agreement In An Illinois Divorce

Attacking or defending a prenuptial agreement is usually done in the preliminary stages of an Illinois divorce via a Motion For Declaratory Judgment.

Every other aspect of an Illinois divorce will hinge on whether the prenuptial agreement will be held to be enforceable or not.

The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments…, contract or other written instrument” 735 ILCS 5/2-701(a)

Declaratory judgments allow “the court to take hold of a controversy one step sooner than normally — that is, after the dispute has arisen, but before steps are taken which give rise to claims for damages or other relief. The parties to the dispute can then learn the consequences of their action before acting.”‘ Kaske v. City of Rockford, 96 Ill.2d 298, 306, 70 Ill.Dec. 841, 450 N.E.2d 314 (1983), quoting Buege v. Lee, 56 Ill. App.3d 793, 798, 14 Ill.Dec. 416, 372 N.E.2d 427 (1978), quoting Ill.Ann.Stat., ch. 110, par. 57.1, Historical & Practice Notes, at 132 (Smith-Hurd 1968).

So, determining the unconscionability of a prenuptial agreement will often be one of the first matters for an Illinois divorce court to consider along with motions for attorney’s fees and temporary maintenance because “agreements attempting to limit temporary support have never been enforceable in Illinois”  Volid v. Volid, 286 NE 2d 42 – Ill: Appellate Court, 1st Dist. 1972

Unconscionability And Prenuptial Agreements In Illinois

“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)

Unconscionability is the “[d]egree of unreasonableness and unfairness of a contract or deal prompting a court to modify or nullify it.” Black’s Law Dictionary (10th ed. 2014)

“An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.” 750 ILCS 10/7(c)

The Illinois statute lays out that it not enough to prove unconscionability in order to make a prenuptial agreement unenforceable. The party trying to render the prenuptial agreement unenforceable bears the burden of proving “that the agreement was unconscionable when it was executed,” AND the existence of each of the circumstances listed in subsections (a)(2)(i), (ii), and (iii) “before execution of the agreement.” 750 ILCS 10/7(a)(2)

“(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)

Procedural Unconscionability And Prenuptial Agreements In Illinois

“Unconscionability can be either “procedural” or “substantive” or a combination of both…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, and also takes into account a lack of bargaining power.” Razor v. Hyundai Motor America, 222 Ill. 2d 75, 100 (Ill. 2006)

“This analysis also takes into account the disparity of bargaining power between the drafter of the contract and the party claiming unconscionability.” Kinkel v. Cingular Wireless, 223 Ill. 2d 1, 22 (Ill. 2006)

Procedural unconscionability considerations 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.” Woodrum, 2018 IL App (3d) 170369

Determining whether a contract is procedurally unconscionable can be determined from the language in the contract itself and the testimony of the party trying to make that contract unenforceable.

A contract that is so confusing as to be unintelligible to the layperson may be sufficient to prove procedural unconscionability.

The testimony of the party who entered into the contract is going to have to be extreme. Examples would be an inability to understand what was going on at the time of the execution of the contract, an inability to read or understand English, signing the contract days before the wedding or assurances from the other party that the contract did NOT mean what the contract actually said.

Substantial Unconscionability And Prenuptial Agreements In Illinois

Substantive unconscionability looks at the actual terms of the prenuptial agreement.

“A contract is substantively unconscionable, and thus unenforceable, where the terms are significantly one-sided or oppressive.” In re Marriage of Iqbal, 2014 IL App (2d) 13130

“[S]ubstantive unconscionability refers to terms that are inordinately one-sided in one party’s favor.” Kinkel v. Cingular Wireless, 223 Ill. 2d 1, 28 (Ill. 2006)(Citations Omitted)

“Substantive unconscionability concerns the question whether the terms themselves are…reasonable.” Frank’s Maintenance & Engineering, Inc. v. C. A. Rorerts Co., 86 Ill. App. 3d 980, 990 (Ill. App. Ct. 1980)

“Substantive unconscionability concerns the actual terms of the contract and examines the relative fairness of the obligations assumed. Indicative of substantive unconscionability are contract terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity.” Hutcherson v. Sears Roebuck Co., 342 Ill. App. 3d 109, 121 (2003) Quoting Maxwell v. Fidelity Financial Services, Inc., 184 Ariz. 82, 89, 907 P.2d 51, 58 (1995).

Unfair terms will be determined through the eye of the beholder: the divorce judge.

A court evaluates conscionability by looking to the parties’ “relative economic positions immediately following the making of the agreement.” (Emphasis omitted.) In re Marriage of Nilles, 2011 IL App (2d) 100528

Examples of unfair terms in a prenuptial would be a gross deviation from what the party would have gotten in a divorce. For example, a complete waiver of maintenance or little or no assets that would have, otherwise, been deemed marital.

Disclosure And Unconscionability In An Illinois Prenuptial Agreement

Even if a prenuptial agreement is deemed procedurally or substantively unconscionable, the party trying to render the prenuptial agreement unenforceable must still prove ALL of the following.

(i) [That they were] 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)

Every prenuptial agreement must contain a description of the parties’ property and financial obligations (debts). This is usually included in an appendix to the prenuptial agreement.

The “fair and reasonable disclosure” requirement focuses “on the disclosure actually made, and not on the language of the agreement.” Woodrum, 2018 IL App (3d) 170369

“Fair and reasonable disclosure” will be determined by the divorce judge. The more detailed the disclosure, the better. Less detail or vagueness will be cause for arguing that the disclosure was neither fair nor reasonable. Omitting an asset may seem to be unfair and unreasonable…but it’s still probably not presumptively fair and unreasonable.

“[A] “fair and reasonable” disclosure requires less than a complete disclosure, and the failure to disclose any particular piece of property or financial obligation is not, in and of itself, fatal to the enforcement of prenuptial agreement. Rather, the purpose of a disclosure is to ensure that each party has sufficient knowledge regarding the other party’s financial circumstances in order to understand the nature of the legal rights being waived, with the burden to inform being on the disclosing party.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018

Even if the disclosure of assets wasn’t provided in a fair and full fashion, if the party waived “in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided” the prenuptial agreement will not be held unconscionable. Most prenuptial agreements contain a clause waiving any right to disclosure beyond what has already been disclosed.

Furthermore, couples often live together before marriage and in the course of their intimate relationship gain “adequate knowledge” of the other parties’ assets and obligations. Adequate knowledge will be substitute for a fair and reasonable disclosure. “”[A]dequate knowledge” does not require full knowledge of every asset or financial obligation that is owned or owed by a party. Rather, “adequate knowledge” is knowledge that a party has, or reasonably could have had, regarding the general approximation of the other party’s income, assets, and liabilities.” In re Marriage of Woodrum, 115 NE 3d 1021 – Ill: Appellate Court, 3rd Dist. 2018

As you can see, it is really difficult to declare a prenuptial agreement unconscionable and, thus, unenforceable in Illinois. Prenuptial agreements can be declared unconscionable if you can prove any of the elements of unconscionability and show that disclosure was not sufficient under Illinois law.

Even if the burden of unconscionability and lack of disclosure are not met, the party attacking the prenuptial agreement can still plead with the court for some kind of reasonable support should the upheld prenuptial agreement deny support.

“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.” 750 ILCS 10/7(b)

Raising the denial of maintenance as an “undue hardship is a second bite at the apple that the courts may consider but do not have to enforce.

“This section does not automatically obviate the parties’ rights to contract for the elimination of spousal support. The application of section 7(b) applies only where such relief is necessary to avoid undue hardship in light of circumstances not reasonably foreseen at the time of the execution of the agreement. The statute merely states that the court “may” grant additional support. By use of the word “may,” the legislature made such an award a matter of discretion for the trial court.” In re Marriage of Barnes, 324 Ill. App. 3d 514, 523 (2001)

Undue hardship, when considered, is a function of whether the parties foresaw that hardship when they signed the prenuptial agreement.

“The issue of whether undue hardship existed as a result of circumstances not reasonably foreseeable at the time of the agreement was for the trial court to decide upon the evidence presented. ” In re Marriage of Barnes, 324 Ill. App. 3d 514, 523 (Ill. App. Ct. 2001)

No one imagines themselves destitute after a divorce…even if they signed a prenuptial agreement. So, avoiding foreseeability should be an easy argument to make.

If you have a prenuptial agreement and are considering a divorce in Illinois contact my Chicago, Illinois family law firm to schedule a free consultation with an experienced Chicago divorce attorney.

Share Article on


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.

More about This Topic

Relevant Articles

Call Now Button