A prenuptial agreement can be a smart choice for a couple about to get married. A prenup can help a couple decide how to split up their marital property, in the event of a divorce, if they decide against splitting it up 50-50. This can be especially enticing to a spouse entering the marriage with more property, or if they are likely to earn more during the marriage. But a prenup does not guarantee that a spouse can automatically keep everything. Just because the prenuptial agreement is drafted and signed before the marriage does not mean that the courts will enforce it after the divorce.
In section seven of the Illinois Uniform Premarital Agreement Act, there are circumstances in which a prenuptial agreement will not be enforceable.[1] This would happen when it causes a party “undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement”.[2] This means that a court will not hold up a prenuptial agreement if, due to unforeseen circumstances, if it will cause too much suffering for one of the spouses.
1. Undue Hardship
The threshold for undue hardship is relatively difficult to meet. It does not just mean that the spouse will now be in a worse financial position than before. The court defined undue hardship in In re Marriage of Amyette, where it said that when a payee’s fundamental financial insolvency, after divorce, is mathematically demonstrable as being very likely unable to avoid homelessness, or even a life in sub-standard housing, there is an undue hardship.[3]
Despite the sub-standard housing verbiage at the end, the undue hardship burden is hard to prove. Even a drastic change in lifestyle following a divorce can be insufficient. In the case of In re Marriage of Barnes, Sandra Barnes went from being a housewife married to a CEO making over $250,000 a year plus perks to working a clerical job earning $24,000.[4] Even though her household income was now less than one-tenth what it used to be, the court denied her claims of undue hardship.[5] To prove that there is undue hardship, the spouse has to show that they have been left basically destitute by the prenup.
A lack of disclosure is also not a sure bet when trying to prove that a prenup is unenforceable. In the case of In re Marriage of Woodrum, the wife tried to stake her unenforceability claims on the fact that her husband had not provided a full disclosure of all his assets during the agreement.[6] She lost however because full disclosure is not required, there just needs to be a ‘fair and reasonable’ disclosure.[7] As long as the spouse receives sufficient knowledge of the other spouses financial situation, they do not need to be notified of every single asset the other spouse owns.
In order for the prenuptial agreement to be unenforceable, it will likely have to be shown to be unconscionable or agreed to under duress. In In re Marriage of Sarancic, the agreement was unenforceable because of its unconscionability.[8] The court held that it was both procedurally unconscionable and substantively unconscionable.[9] It was procedurally unconscionable because the wife knew limited English and as such did not have a good enough grasp on what she was agreeing to, and it was substantively unconscionable because of how little the wife would be left with in the end.[10] The husband had a net worth between $750,000 and $1 million while the wife did not work.[11] The agreement would give the wife, only because the marriage lasted over 5 years, $30,000, while waiving any property division or maintenance.[12]
2. Reasonably foreseeable
The ‘reasonably foreseeable’ language is just as important as undue hardship when it comes to enforceability. Reasonably foreseeable is less cookie cutter than undue hardship, it is more related to the specific facts of each case. One aspect that can affect how reasonably foreseeable a hardship is, is how reasonably foreseeable a divorce would be in the first place. If it is a young couple that are both being married for the first time, anything in the prenuptial agreement could be argued to be not reasonably foreseeable because the couple is so sure that they will spend the rest of their lives with each other. Meanwhile, if it is the wife’s third marriage and the husbands fourth, it might be harder to claim that a divorce was unforeseeable, even if both of them really are thinking this time is the one. This situation reared its head in In re Marriage of Barnes where it had been the agreement for the husband’s fifth marriage that was being contested.[13] The court stated that this fact made the divorce reasonably foreseeable.[14]
A prenuptial agreement is a contract that can lead to a lot of heartache and a lot of litigation. It can seem like a good insurance policy for someone coming into a marriage with a lot, but it can easily become unenforceable if it leaves their spouse with too little. Plus this nebulous standard gets even murkier when the reasonable provision is added. While the concept of a prenup is simple, the execution can be anything but.
[1] Illinois Uniform Premarital Agreement Act
[2] Id.
[3] In re Marriage of Amyette, 2023 IL App (3d) 200195, ¶ 29, 471 Ill. Dec. 775, 782, 229 N.E.3d 526, 533
[4] In re Marriage of Barnes, 324 Ill. App. 3d 514, 516, 258 Ill. Dec. 139, 142, 755 N.E.2d 522, 525 (2001)
[5] Id.
[6] In re Marriage of Woodrum, 2018 IL App (3d) 170369, ¶ 52, 426 Ill. Dec. 99, 118, 115 N.E.3d 1021, 1040
[7] Id.
[8] In re Marriage of Sarancic, 2020 IL App (1st) 191817-U, ¶ 39
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] In re Marriage of Woodrum, 2018 IL App (3d) 170369, ¶ 52, 426 Ill. Dec. 99, 118, 115 N.E.3d 1021, 1040
[14] Id.
Joseph Neubauer, Guest Blog Post