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Kane County family law attorneyToday, Americans are getting married for the first time later in life than ever before, and there has also been an increase in the number of remarriages. As a result, more and more couples are drafting prenuptial agreements. It is understandable to wonder how age and remarriage affect the need for a prenuptial agreement, or prenup, but the answer is quite simple. Those who marry when they are older—including second and third marriages—generally bring more into a marriage. In this context, “more” does not just mean assets and debts. It also refers to obligations for children, spousal support, and other considerations.

A prenuptial agreement can be a valuable tool that allows both spouses to protect themselves and any children from a previous relationship, but only if the document is drafted and executed properly. Many couples operate under the assumption that their prenup will protect them down the road only to find out that there was a flaw that caused the agreement to become unenforceable. In Illinois, the court may set aside a prenuptial agreement for reasons such as:

  • Deception or incomplete disclosure: Before you sign a prenup, you must make a full financial disclosure to your partners, and he or she must do the same. While this can be waived, doing so is rarely a good idea. If you or your spouse leave out or “forget” particular debts or assets, the agreement may not have been based on accurate information, and it may be deemed invalid;
  • One party was forced to sign: A prenuptial agreement is meant to be a voluntary contract between the parties. If you were impaired by alcohol or drugs or forced to sign under threats of violence, the court may set aside your agreement. An ultimatum—such as threatening to call off the wedding—is not generally considered to be coercion;
  • Lack of counsel or proper consideration: Illinois law does not require both parties to hire an attorney before signing a prenuptial agreement, but having a lawyer at least look over the agreement is a good idea. If your spouse has an attorney and you do not, you could be at a serious disadvantage. It is also important for you to have enough time to read, understand, and agree to the terms of the agreement;
  • Extreme unfairness (unconscionability): The provisions of your prenup do not need to be equal for both parties, but they cannot be dramatically one-sided either. For example, if your agreement says that in the event of a divorce, you will assume responsibility for all marital debts while your spouse will receive all of the marital assets, the document is not likely to be enforced.

We Can Help

unconscionable, divorce agreement, Geneva divorce lawyerAs you approach the divorce process, you and your soon-to-be ex-spouse may already have most of the details covered. It is not uncommon for a couple to “pre-negotiate,” if you will, regarding the various necessary considerations before the petition for divorce is even filed. For the vast majority of cases, this is very welcome, and a much lower-stress alternative to long, drawn-out courtroom battle, the impact of which may be felt by both parties for years into the future. For some couples, however, their negotiated agreement may not meet the court’s standards, and could be rejected on the grounds of being unconscionable. It is important to understand just what that means so you can be prepared to avoid such a response from the court.

Negotiate with an Understanding of the Law

While you certainly do not need to be an attorney to reach a reasonable agreement with your spouse, it does help to have a basic grasp of what the Illinois divorce laws require. This is especially applicable to concerns for property division, and spousal maintenance. A negotiated agreement does not necessarily need to adhere to each and every provision in the related laws, but understanding what the law considers to be just and equitable is a good place to start. From there, you and your soon-to-be ex can create virtually any type of settlement you wish, as long as it is reasonably fair to both parties and your children.

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