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What Can I Do if My Prenuptial Agreement is Heavily in My Spouse's Favor?

Posted on in Divorce

Hinsdale divorce lawyerMany spouses elect to enter into a prenuptial or postnuptial agreement. Such agreements may define which assets are one spouse’s separate property, how marital property is to be divided in the event of divorce, whether spousal maintenance payments are to be ordered, and other clauses impacting a divorce action. Illinois state law places limitations on the nature of clauses that may be permissibly included in a prenuptial or postnuptial agreement. In addition to legal limitations regarding the contents of a prenuptial agreement, there are limits as to the enforceability of such contracts. Impermissible clauses may include agreements regarding parenting time or child support, as these issues are to be decided strictly in the best interest of the child. In the context of enforceability, drastic unconscionability may be cause for dismissal of the agreement in whole or in part. If you harbor concerns about the impact of your prenuptial or postnuptial agreement on your divorce, it may be prudent to speak with a qualified attorney. 

Grounds for Setting Aside a Prenuptial or Postnuptial Agreement

While prohibited clauses such as those relating to childcare are patently impermissible and unenforceable, other areas of the agreement may be judicially declared unenforceable due to a latently impermissible impact on the results of a divorce. Potential grounds for dismissing a prenuptial agreement may include: 

  • Unconscionability - Unconscionability generally looks at the impact of a given clause. Your agreement may potentially be dismissed if it is determined that the impact would be so drastically unjust as to rise to the level of unconscionability. This rule of law is commonly used to address situations in which one spouse would be rendered unable to support themselves in such a manner as to meet the basic needs of life. Anticipated eligibility for public assistance post-divorce is a near-automatic ground for dismissal. 

  • Coercion or duress - This rule is applicable in situations where there was an implied or explicit threat of refusing to enter the marriage without signing the contract. Other types of duress or coercion inflicted by the spouse favored in the agreement may provide grounds to invalidate the contract. 

  • Nondisclosure - A not uncommon offense in marriages between affluent individuals is the nondisclosure of assets and debts prior to entering a prenuptial or postnuptial agreement. If you have discovered additional undisclosed assets or debts in your spouse’s name, the court may find that you were not provided adequate opportunity to enter the contract with complete knowledge as to its effects.

There are additional grounds under which a prenuptial or postnuptial agreement that weighs heavily in the favor of one spouse to the other’s disadvantage may be judicially dismissed. 

Contact a DuPage County Divorce Attorney

Botti Marinaccio, LTD. is committed to guarding clients against the inequitable and unconscionable application of a prenuptial or postnuptial agreement. Our experienced Hinsdale divorce lawyers will carefully review each term of your agreement in the greater light of the circumstances under which it was signed. Call 630-575-8585 for a confidential consultation. 

Source: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59

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Botti Marinaccio, LTD.

630-575-8585

2015 Spring Road, Oak Brook, IL 60523

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