Pre-Marital Agreement Flashcards
What are the two statutes that monitor and regulate pre-marital agreements in Illinois?
1) Uniform Premarital Agreement Act of 1983;
2) Illinois Uniform Premarital Agreement Act
What is Breach of Promise to Marry and is it still used?
No, it is no longer valid. This was created for public policy reasons to allow a party to collect money damages for what they put forward for the wedding and engagement.
What is the Alienation of Affections Act and is it still valid?
No, its been repealed in Illinois. The ex-spouse can sue a 3rd party claiming that “but-for your actions, me and my spouse’s marriage would have stayed intact.”
Why do special requirements, as well as contractual requirements, apply to pre-marital agreements?
The contracts tend to be emotional and are often based on trust and belief. For this reason, parties will sometimes make decisions that are not in their best interest.
Who must prove a pre-marital agreement is invalid?
The person who is challenging the pre-marital agreement’s validity is the party who has to prove it is invalid.
What must a pre-marital agreement have to be valid?
1) A writing signed by both parties;
2) Full and fair financial disclosure;
3) Voluntarily entered;
4) Reasonable/conscionable at the time it is entered;
5) Enforcement will not result in inequity or undue hardship;
6) Counsel is not required, but preferred;
7) No consideration is required.
What cannot be done in a pre-marital agreement?
Anything involving current or future children. For example, cannot waive child support, cannot determine who children will live with, etc.
What can be done in a pre-marital agreement?
Waive maintenance; waive inheritance rights; waive pension. As long as it is clear and enforceable and not unconscionable, then it can be waived.
What is required to waive rights to a pension in a pre-marital agreement?
Agree to it in the contract. Then, post marriage, must sign the form to state that the party waives those rights. Without signing the post marriage form, they will not be waived.
Simeone v. Simeone
Can a wife sign a pre-marital agreement, without counsel, on the night before the wedding? Will it be valid?
Yes. Although she is not represented by counsel, had very little time to review it, it will still be binding and enforceable.
Notably, the agreement did allow her substantial support payments, and this probably had an impact on the court.
What is required according to the Illinois Uniform Pre-Marital Act to prove that a prenup is invalid?
Must prove that it was not voluntarily executed, it was unconscionable when executed; no fair and reasonable disclosure of property was made; No voluntary waiver; No adequate knowledge; No spousal support and leads to undue hardship.
