Warning: The Wording in Your Prenuptial Agreement is Critical

Getting people to execute a prenuptial agreement is difficult. Then when a prenuptial agreement is executed, if the wording of the agreement isn’t clear, the person trying to avoid paying can still be stuck paying the ex-spouse. That is unfortunate and avoidable.

One such example of a spouse having to pay when he shouldn’t have had to was a recent case that was decided in the Woodrum case by the Appellate Court in McDonough County, Illinois.

In re Marriage of Woodrum — Prenuptial Fail

  • What was the purpose of hiring the attorneys to draft the prenuptial agreement if the Court is going to grant maintenance anyway?
  • What went wrong? And why isn’t the agreement valid?

The Court did find that the prenuptial agreement was valid, but two words left Greg in a bad position and one that he hadn’t anticipated. His prenuptial agreement said the parties had only waived maintenance “upon dissolution” — not upon the filing of a petition for dissolution of marriage. In the judge’s opinion, Greg wouldn’t pay maintenance to Jennifer once they were divorced, but he would pay maintenance to her while the divorce case was ongoing. Greg had to pay Jennifer $1,137.00 per month in temporary maintenance until the divorce was granted. I’m guessing that Jennifer was in no hurry to finalize the divorce. Two words, improperly drafted, now have caused Grey money and a lot of aggravation.

Wife Attempts to Invalidate the Prenuptial Agreement

Wife Argues for Temporary Spousal Maintenance

Prenuptial Agreement Clause Regarding Maintenance

“MAINTENANCE. In consideration of the promises and marriage of the Husband and Wife in this Agreement, the Husband and Wife hereby declare that each is currently self-supporting. Each party states to the other that their educational background and work experience have allowed them to acquire valuable and readily marketable employment skills and their separate assets, and that by virtue of those skills and assets both are able to support themselves through appropriate employment or business and are possessed of sufficient income, each to provide for their own support. Husband and Wife, therefore, hereby waive from the other all right to maintenance for themselves from the other under the laws of the State of Illinois or any other state in which either party may hereafter reside upon divorce or dissolution of the marriage contemplated by this Agreement. This waiver of maintenance shall be binding on each.”

The Premarital Agreement Act omits the prior common law requirement that an enforceable agreement must also be fair and reasonable and must not result in an unforeseen condition of penury for the party challenging the agreement. In re Marriage of Heinrich, 2014 IL App (2d) 121333. Thus, under the Illinois Premarital Agreement Act, a court cannot invalidate a premarital agreement merely because the enforcement of the agreement would result in a disproportionate allocation of assets to one of the parties.

Enforceability of the Premarital Agreement

“(a) A premarital agreement is not enforceable if the party against whom
enforcement is sought proves that:

(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before
execution of the agreement, that party:

(i) was not provided a fair and reasonable disclosure of the
property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the other party
beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other party.”1750 ILCS 10/7(a) (West 2016).

In this case, Jennifer acknowledged that she voluntarily signed the premarital agreement. There was no issue as to whether Jennifer made a knowing waiver of her marital rights. Consequently, the parties’ premarital agreement was enforceable unless Jennifer was able to prove, pursuant to section 7(a) of the Illinois Premarital Agreement Act, that the agreement was unconscionable when it was executed and that, before execution, she was not provided a fair and reasonable disclosure of Greg’s property and financial obligations.

Disclosure of Property, Assets and Financial Obligations

Reasonable, Fair and Complete Disclosure Required

“Fair and Reasonable” Disclosure Requirement

Burden of Proof Falls on Party Seeking to Avoid Enforcement of the Premarital Agreement

Wife Argued Agreement Procedurally Unconscionable

Circumstances Surrounding the Execution of the Premarital Agreement

Is the Agreement “Substantively Unconscionable”?

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