Unenforceable Prenup Provisions

Posted on in Family Law

St. Charles prenuptial agreement lawyerMany engaged couples now make sure that they have a prenuptial agreement on their wedding to-do list. And while most prenups are fairly standard, it is still important to have an experienced family law attorney working with you when putting it together. This is because there are certain things that Illinois law does not allow in prenuptial agreements and could declare the contract void if you ever do divorce.

A valid prenuptial agreement can include the assets and debts that each spouse has, what will be considered marital property and what will be considered separate property, how marital expenses will be paid, how any student loan expenses will be paid, and whether there will be any spousal support should the parties divorce in the future. There should also be a provision regarding any arbitration or mediation requirements. The following are some of these items that are unenforceable.

Prenup Made Under Involuntary Circumstances

The first issue a court will look at to determine the validity of a prenup is whether or not it was made voluntarily by both parties. The agreement can be ruled void if any of the following applied when the contract was signed:

  • Failure to provide full disclosure of assets
  • Fraud
  • Duress to sign the agreement (or undue influence)
  • Unfair or unconscionable provisions

Child Custody and Support Provisions

Illinois law has specific laws when it comes to child custody and child support. Child custody – called allocation of parental responsibilities and parenting time under the current state statute – is determined using the “best interest of the child” doctrine. This means that the court will have the final say in matters related to child custody. Couples cannot have provisions in a prenuptial agreement that state how custody should be divided in the event they break up.

The same applies to child support provisions. Because of the laws of the state govern how much a parent should pay based on the income shares model, this is another area where a child support clause in a prenup would be ruled null.

Marital Conduct

Any provision that forces one spouse to behave or act in a certain way is also unenforceable. This includes provisions about appearance, sexual relations, and child-rearing responsibilities.

Public Policy Violations

Any provisions that would normally violate public policy standards are also not enforceable. This includes any demands that would prevent the spouse from exercising their legal right (i.e., being forbidden to vote), that are discriminatory, or involve illegal activity.

Contact a Kane County Divorce Attorney

If you are considering getting married and would like to speak to a St. Charles, IL family lawyer about a prenuptial agreement, call Shaw Sanders, P.C. at 630-584-5550 to schedule a free consultation.



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