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Your Illinois prenuptial agreement may not hold up in court

Asset division, or the process of splitting up both your possessions and your debts, is one of the most contentious parts of a divorce. More couples than ever before are seeking to eliminate the stress by signing prenuptial agreements. A prenup is basically a contract outlining how you plan to handle a divorce.

Unfortunately, many people execute these documents with heart-shaped stars in their eyes. They imagine that they will be married forever, and the terms of the prenup are not important to them.

Later, as their marriage falls apart, they realize that the terms of the agreement are very biased or unfair. If you find yourself in the situation, you need to educate yourself about when a prenuptial agreement becomes invalid. You should familiarize yourself with Illinois divorce standards and how the courts handle prenups.

Illinois courts often uphold prenuptial agreements, but they can throw them out, too

Attorneys generally know what they are doing when they draft prenuptial agreements. This means that they take great care to use legally binding language and avoid the common pitfalls that occur in these documents.

Provided that the document is legally sound and that both you and your spouse signed it of your own volition, the courts may well choose to uphold it. However, there are situations in which the courts will invalidate a prenuptial agreement. Understanding those circumstances can help you predict whether or not your prenuptial agreement will hold up in court.

Did you have independent legal representation?

Two of the most common issues relate to your mental state when signing. If you chose to sign without having your own attorney review the document, it could mean that your spouse took advantage of you.

You may not have understood the terms fully, and now you realize you signed something that benefited your spouse far more than yourself. The courts will look carefully at a prenuptial agreement signed by someone who did not receive independent legal advice prior to signing.

Were you under duress when you signed?

Generally speaking, the Illinois courts will also consider claims of duress at the time of signing. There are many situations that could lead to duress, which means a situation where you feel like you do not have a choice.

For example, if you were pregnant at the time that you signed, and you're spouse refused to marry you without a prenuptial agreement, the threat of raising a child as a single mother could be a source of duress.

Similarly if you live in a religious community and had already engaged in sexual intercourse with your spouse, his or her threat to expose you as a non-virgin or simply to not marry you after having been intimate with you could be a form of duress.

The courts want to see a document that protects both spouses

Another common reason that the courts throw out a prenuptial agreement is unconscionable terms. Many times, this means a prenuptial agreement that offers a lot of protection to one spouse and very little to the other. If everything your spouse owned prior to marriage and made during the marriage gets classified and protected as separate property, but there's no inclusion of protections for your income, this could be an unconscionable bias. The courts will look carefully at who benefits from the document before deciding if it is valid.

Finally, weird personal requests and waivers of child support are often unconscionable inclusions. If your spouse expected you to sign a document that required that you not gain weight or waive your right to spousal support in a divorce, that may be unconscionable.

Also, neither parent has the right to waive the obligation of the other to pay child support in the event of a divorce. If your prenuptial agreement specifically discusses child support or even child custody arrangements, the courts may invalidate the whole document as a result.

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