When are Prenup Agreements Voidable?

Prenuptial agreements are not enforceable when the moving party can prove that either they did not enter the agreement voluntarily or that the agreement was unconscionable. 750 ILCS 10/7(a)(1), (2). A court may find that a prenup is unconscionable if prior to signing the agreement, a party did not provide a fair and reasonable disclosure of their property or financial obligations; the other party did not voluntarily waive, in writing, any right to such a disclosure beyond what was provided; and they 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)(2)(i), (iii). If a provision of a prenup agreement either eliminates or modifies maintenance (formerly known as alimony) and that causes one spouse undue hardship due to circumstances not foreseeable at the time of signing the agreement, a court may require the other party to provide support to the extent necessary to avoid the hardship. 750 ILCS 10/7(b).

A court may find a prenup unconscionable in two ways: procedurally or substantively. In re Marriage of Sarancic, 2020 IL App (1st) 191817-U at ¶37. Procedural unconscionability means that the prenup was unconscionable in the manner of which it was executed, while substantive unconscionability means that the terms of the prenup themselves are unconscionable. Id. When determining whether a prenup is procedurally unconscionable, a court examines all circumstances surrounding the execution of the agreement, the manner in which it was entered, whether each party had an opportunity to understand the terms, and whether important terms were hidden in the fine print. Id. In In re Marriage of Sarancic, the First District held that the prenup agreement entered into by the parties was procedurally unconscionable. Id. at ¶39. The court identified several factors it determined to be relevant in its consideration: (1) that the wife did not know what was going on; (2) that she did not understand what she was signing and the terms of the agreement; (3) that she had very little ability to read English; (4) that the agreement was in English; and (5) that she was told that the agreement gave each party what they had before the marriage and would split marital property evenly. Id. Further, the wife only consulted a lawyer who was selected and paid for by her husband, and only after the prenup was signed, not before. Id.

However, the statutory framework of the Premarital Agreement Act only applies to agreements signed on or after January 1, 1990. Kranzler v. Kranzler, 116 N.E.3d at 360 (1st Dist. 2018). Prenups signed prior to 1990 are evaluated for enforceability under Illinois common law. Id. Common law states that prenups were valid if the agreement does not create an unforeseen condition of extreme poverty due to one spouse’s lack of property or employability; the parties entered into the agreement with full knowledge, with no fraud, duress, or coercion; and the agreement is fair and reasonable. Id. In Kranzler v. Kranzler, the First District held that a prenuptial agreement signed the same day as the marriage that the wife had not read was enforceable under common law. Id. at 367. The parties were pressured to get married by their parents as the wife became pregnant with the parties’ second child. Id. at 353. While the wife had not read the agreement before signing, the court held that she had a reasonable opportunity to do so because she had met with an attorney the month prior about it. Id. at 351. Further, despite the wife testifying that she was told by her husband “it’s tonight or never,” as well as being five months pregnant and feeling ill, the court held that she did not sign the agreement under force or duress. Id. at 365.

In conclusion, if your prenup was signed prior to 1990, it is evaluated for enforceability under common law, while all agreements signed since are evaluated under the Premarital Agreement Act. Under the Act, prenups are considered unenforceable if either the agreement was not entered into voluntarily, or the agreement was unconscionable. 750 ILCS 10/7(a). Courts determine whether an agreement is unconscionable as a matter of law. 750 ILCS 10/7(c). When drafting or entering into a prenuptial agreement, it is important to consult with a legal professional independent of your partner to ensure that your interests are protected and that the agreement is in your best interest.