Prenuptial agreements, or simply “prenups,” are a common means of providing security for one’s assets before entering into a marriage. Many soon-to-be spouses find the topic of prenuptial agreements both emotionally challenging and complex. However, it is important for both parties to understand the stipulations of an agreement and the conditions under which the agreement could be considered invalid.
If a couple signs a prenuptial agreement and then divorces, a reasonable, properly drafted agreement will be enforced by the court. In some cases, however, one spouse may wish to challenge the agreement. While it possible for a prenuptial agreement to be set aside or deemed unenforceable by the court, convincing the court to do so is rarely easy.
There are several reasons or possible concerns the court may use as a basis for refusing to enforce a prenuptial agreement, including that the agreement was not voluntarily signed by both spouses or that one spouse misrepresented his or her financial situation. One of the most common reasons, however, is that certain provisions of the agreement or the entire document is inherently lopsided and, in the court’s opinion, too unfair to one spouse. A provision that is deemed too one-sided is known as “unconscionable” according to the law and may be set aside.
For example, a prenuptial agreement that gives nearly all of the marital assets to one spouse and leaves the other practically destitute in the event of a divorce is not likely to be upheld by the court. Unconscionability can occur in one of two ways. The first is when the agreement was inherently unfair from the very beginning and the financial situation of the spouses are roughly the same as at the time the agreement was signed.
The other occurs when there is a substantial change in circumstances that was not foreseen or accounted for prior to the marriage. To illustrate, consider a situation in which a couple signed a prenuptial agreement in which both spouses waived the right to ask for maintenance in the event of divorce. At the time, both parties enjoyed lucrative careers with no expectation of needing financial assistance in the future. During the marriage, however, one spouse suffers a debilitating injury and is no longer able to work. If the couple subsequently divorces, the provision regarding maintenance may now be unconscionable given the new circumstances.
Prenuptial Agreement Review
If you are considering a prenuptial agreement prior to your upcoming marriage, an experienced Orland Park family law attorney can help you review the document for any potential trouble spots. Call Kezy & Associates at 708-518-8200 for a free consultation today.