Since January 1, 1990, prenuptial agreements in Illinois must comply with the Illinois Uniform Premarital Agreement Act (“Act”) in order to be enforceable. The Act codified much of the common law that had developed over the years interpreting prenuptial agreements and thereby enhanced the enforceability of such agreements.
Under the Act, all prenuptial agreements must be in writing. Additionally, the Act sets forth the matters that parties to a prenuptial agreement can include in their agreement, such as the division of property acquired during the marriage and spousal support. Finally, the Act prohibits prenuptial agreements from including provisions which would adversely affect the right to obtain child support for a child born during the marriage.
When challenging the validity of a prenuptial agreement, the Act sets forth three possible grounds, i.e., the agreement was not executed voluntarily, the agreement was unconscionable, or the elimination of spousal support causes undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement. In determining whether a prenuptial agreement was executed voluntarily, the California case of In re the Marriage of Barry Bonds provides some guidance as California also adopted a form of the Act.
In the Bonds case, the San Francisco Giants’ slugger’s fiancée executed a prenuptial agreement during a quick stop to Bonds’ attorney’s office while Bonds and his fiancée were on their way to the airport to catch a flight to Las Vegas for their small, informal wedding. When the marriage failed, Bonds’ wife claimed she had not voluntarily executed the prenuptial agreement because she was not represented by separate counsel at the time the agreement was executed, had limited command of the English language (because she was from Sweden), and was presented the agreement for execution only hours before her wedding without the opportunity for a thorough review.
In upholding the trial court’s finding the prenuptial agreement was executed voluntarily, the California Supreme Court noted the parties were not required to be represented by separate counsel in order for the prenuptial agreement to be executed voluntarily. Moreover, Bonds’ fiancée had not been coerced into executing the agreement since she had not been subject to any threats, had not been forced to sign the agreement, and had not objected to its signing. The temporal proximity of the wedding to the execution of the agreement was not coercive because, given the small number of guests invited to the wedding and the informality of the wedding arrangements, there would have been little embarrassment if the wedding had been cancelled. Finally, the presentation of the agreement to Bonds’ fiancée shortly before the wedding could not have surprised her because she and Bonds had previously discussed his desire to protect his assets and she was aware an agreement was planned for at least a week prior to the wedding.
If you have a question about a prenuptial agreement or are considering entering into such an agreement prior to your marriage, please telephone a member of the firm to ensure that such an agreement complies with the requirements of the Act.