Prenuptial and Postnuptial Agreements: Enforcement in an Illinois Divorce

 Posted on May 29, 2020 in Illinois Family Law

Before getting married, many couples enter into a premarital agreement that outlines terms in the event of a divorce. There are many different types of issues that can be negotiated between the parties and can become part of a premarital agreement. However, there are some issues that cannot be enforceable as part of a premarital agreement. For example, parties can never negotiate about child support or include a clause that says one of the parties will not be responsible for making child support payments in the event of a divorce. Parties can, however, negotiate about spousal maintenance. The same is true of postnuptial agreements. Similar to prenuptial agreements, a postnuptial agreement allows spouses to reach an agreement about certain issues in the event of a divorce.

We want to provide you with more information about the enforceability of premarital and postnuptial agreements in the event of a divorce in Oakbrook Terrace. If you do have an agreement in place with your spouse and are planning to file for divorce, one of the experienced Oakbrook Terrace divorce lawyers at our firm can help.

What Makes a Premarital or Postnuptial Agreement Unenforceable

Generally speaking, the Illinois Uniform Premarital Agreement Act governs most matters pertaining to premarital agreements in the state, and issues of enforceability also pertain to postnuptial agreements. Under Illinois law, what makes such an agreement unenforceable?

An Illinois premarital or postnuptial agreement is usually enforceable if they are in writing and signed by both parties, but they can become unenforceable if any of the following things are true:

• Fraud led one of the parties to agree to the prenup
• One of the parties signed the prenup under duress
• Agreement is unconscionable

Premarital Agreements Created By Religious Community Members and Based on Religious Principles

When it comes to Muslim couples and premarital or postnuptial agreements in Illinois, a case out of the Appellate Court of Illinois a few years ago clarified that certain clauses in family law documents like prenuptial or postnuptial agreements are not enforceable simply because they have been created with the guidance from a religious adviser if they would otherwise be unenforceable according to the tenets of Illinois family law. Rather, Illinois courts will look specifically to secular concerns when determining whether a premarital or postnuptial agreement is enforceable in a divorce case.

That case, In re Marriage of Iqbal and Khan (2014), involved a married couple who sought guidance for a postnuptial agreement from a marriage counselor who was within the Muslim community. That marriage counselor ultimately put together the postnuptial agreement. It contained a number of clauses that placed substantial restrictions on the parties. For example, it contained clauses that promised the parties would base their lives on the “Holy Quran and Sunnah, as practiced in the Islamic religion,” and the parties also promised to avoid calling the police for any incident without first contacting the marriage counselor. If the parties violated any of the terms of the agreement, they would forfeit other significant rights.

The court ultimately ruled that the postnuptial agreement, due to these terms and others, was “substantively unconscionable” and thus unenforceable because the terms of the agreement were “significantly one-sided or oppressive.” While parties can enter into certain agreements created by leaders within their religious communities, the enforceability of a premarital or postnuptial agreement will be based on previous secular principles of family law.

Contact a Divorce Lawyer in DuPage County

Do you have questions about crafting an enforceable premarital or postnuptial agreement? A skilled DuPage County divorce attorney can assist you. Our lawyers have been representing the Muslim community of DuPage County for years and can speak with you today. Contact Farooqi & Husain Law Office for more information. You can also call us at 630-909-9114.

 

Source:

https://courts.illinois.gov/Opinions/AppellateCourt/2014/2ndDistrict/2131306.pdf

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2087&ChapterID=59