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Should I fight my premarital agreement in a divorce dispute?

| Mar 14, 2019 | family law |

In many marriages in Illinois, the couple will have a premarital agreement – also referred to as a prenuptial agreement – before they get married. This is true in a high asset situation or one of more modest means. It is a protective device in the event of a divorce. Unfortunately, many marriages do end in divorce and the premarital agreement comes to the forefront. Often, however, many spouses who signed the agreement would like to have it declared null and void. Knowing when this is possible is critical in any dispute. When confronted with these difficult family law issues, legal help is essential.

The premarital agreement can address various issues, including property division, selling property, and how property will be dispensed when the couple separates and divorces. It will also cover spousal support, estate planning, which laws will govern the agreement, and other issues. Child support is not included in a premarital agreement. When the premarital agreement is amended after the marriage, it requires the signatures of both parties. Enforcement is one of the most important factors in the premarital agreement and, if the agreement is unenforceable, this can be a key factor in the case.

If one of the parties who signed did not do so voluntarily or if the agreement was unconscionable (unfair) when it was executed, it can be nullified. By unconscionable, it means that the party who signed did not have a full disclosure of the property and financial obligations of the other party; the person did not sign a written waiver to not disclose those issues; and there was no way the person could have known about the financial obligations and property of the other party. The agreement cannot place undue hardship on the signing party regarding spousal support if the situation could not be foreseen at the time it was agreed to.

For those who signed a premarital agreement and no longer believe it was fair, the dispute can have a life-changing impact. It might seem difficult to try and fight a premarital agreement, but there are justifications for doing so. A law firm that has assisted many clients with their family law situations should be consulted to decide if a premarital agreement should be nullified.