What Can An Ex Spouse Do To Attack A Postnuptial Agreement During A Divorce?

Some married couples decide that a postnuptial agreement is right for them. The law provides for postnuptial agreements under 750 ILCS 5/502. Forming an agreement after the couple is already married can be beneficial for certain couples. Postnuptial agreements operate as a form of protection for the spouses, not a precaution. But some marriages, despite the spouses’ best efforts, end in divorce.

Postnuptial agreements can only cover certain topics in order for the court to consider the agreement enforceable. In addition, a number of ways to find a postnuptial agreement invalid or non-binding exist. As a result, a bitter divorcing spouse may try to poke holes in a postnuptial agreement. Some ways to demonstrate that a postnuptial agreement is invalid or non-binding include the following:

• Demonstrating that the postnuptial agreement is unconscionable, either procedurally or substantively.
  • An agreement is procedurally unconscionable if an impropriety in the formation of the agreement exists. For example, such an impropriety may exist when the terms of the agreement are flawed, and one party to the agreement was deprived of meaningful choice when entering into the agreement (i.e., the parties had unequal bargaining power when they formed the agreement).
  • An agreement is substantively unconscionable if the agreement is unreasonably one-sided and severely oppresses one of the parties to the agreement.
• Showing that there was a lack of consideration in exchange for the agreement. Both parties must give something in exchange for the execution of the agreement. The consideration must retain value in some way and such value does not necessarily have to be monetary. A person can forfeit his or her rights in exchange for the execution of the agreement, or could forfeit a claim to property, money, etc. Past consideration does not count as consideration for a new agreement (i.e., a right or property that was given up in the past).
• Showing that the agreement contains illegal terms under the law. Sometimes, a party drafts postnuptial agreements in such a way that they legitimize illegal activities. However, a court will find a postnuptial agreement that contains illegal terms invalid.
• Showing that a party entered into the postnuptial agreement unwillingly. Both parties must enter into the postnuptial agreement voluntarily. If a party or some other third-party individual coerced, forced or threatened the other party to enter into the postnuptial agreement then the court may find the totality of the agreement to be null and void.

Postnuptial agreements operate as useful pre-divorce planning tools, but reasons could exist causing the court to find the agreement null and void. When entering into a prenuptial or postnuptial agreement, you should consult with an experienced pre-divorce planning lawyer. Please contact the professionals at the Women’s Divorce & Family Law Group by calling (312) 445-8830 or click here to schedule a consultation.