A "Premarital Agreement" (or "prenup") is a contract that disposes of property belonging to either party and/or eliminates or modifies maintenance (or alimony), and becomes effective upon marriage. A Premarital Agreement is not enforceable if the party against whom enforcement is sought ("the aggrieved party") proves that he or she did not execute the agreement voluntarily, but rather that he or she signed the agreement under duress or coercion. Duress or coercion results when the actions of the other party prevent the aggrieved party from exercising his/her free will. Duress or coercion may exist if the aggrieved party is asked to sign the Premarital Agreement immediately before the wedding date, denied the opportunity to consult an independent divorce attorney regarding the terms of the agreement, or misinformed about his or her rights by the other party (or an agent of the other party).
Furthermore, a Premarital Agreement is not enforceable if it is "unconscionable" at the time of execution and, at said time, the aggrieved party lacked reasonable disclosure of the other parties' financial circumstances, did not waive disclosure, and had no knowledge of the other party's financial circumstances. A Premarital Agreement is unconscionable if its terms are so unfair to the aggrieved party that enforcement would be oppressive.
However, a court may order a party to a valid, enforceable Premarital Agreement to pay maintenance to the other party, even if the Agreement eliminated said spousal support, if the elimination of maintenance would cause the aggrieved party undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the Agreement. Undue hardship means financial destitution and extreme poverty.
Finally, a waiver of one party's interest in the other party's qualified retirement plan, contained in an otherwise enforceable Premarital Agreement, may be ineffective because the waiving party was not a spouse at the time he or she signed the Agreement.
Michael J. Chiero, Esq. practices family law with Rinella and Rinella in Chicago. He is a member of the Illinois State Bar Association Family Law Section Counsel.