Free Phone Consultations:

Chicago Office - 312.360.0250

Skokie Office - 847.329.0101

Are Prenuptial Agreements Limiting Spousal Maintenance Enforceable?

Are Prenuptial Agreements Limiting Spousal Maintenance Enforceable?

By: M. Scott Gordon

Generally speaking, premarital agreements (also known as prenuptial agreements, or prenups) tend to be a good idea if they are entered into willingly by both parties and when they outline conditions that are fair to both of the parties involved. But what happens when two parties enter into a premarital agreement that eliminates spousal support, and by the time the couple files for divorce, the agreement no longer seems fair? And can couples even enter into a premarital agreement that eliminates spousal maintenance in the first place? These are important questions, and in order to understand the relationship between premarital agreements and spousal maintenance, you will need to have an understanding of what can go into a premarital agreement, and when it can and cannot be enforced.

Can a Premarital Agreement Include Spousal Maintenance?

The first thing you might be asking yourself: is it legal for two parties to contract about spousal maintenance when they are creating a prenuptial agreement? And if so, can they agree to eliminate spousal maintenance altogether? Under the Illinois Uniform Premarital Agreement Act (750 ILCS 10/), parties can indeed include information in their prenuptial agreement concerning spousal maintenance. Specifically, the statute states that “parties to a premarital agreement may contract with respect to . . . the modification or elimination of spousal support.”

What does this mean in practice? Parties can place a clause in their premarital agreement that specifies how spousal maintenance might be paid, or what type of amount both parties agree upon, in the event of divorce. At the same time, the parties can agree that, in the event of divorce, there will be no spousal maintenance awarded. While spousal maintenance can be eliminated in a prenuptial agreement, the parties can not  limit a court’s power in awarding child support.

What Happens if Circumstances Change?

If there is an existing premarital agreement that eliminates spousal support, what happens if it is markedly unfair to the spouse in need of support at the time of the divorce? We can provide a hypothetical example. For instance, imagine that two parties decide to get married when they are in their early 20s. When they are planning for their marriage, they agree that spousal maintenance should be eliminated from their premarital agreement since both parties plan to have lucrative careers during the marriage. As it turns out, the couple later decides to have children, and they decide that it makes sense for one of the spouses to stay home with the kids. Spouse A becomes the primary earner for the family while Spouse B spends most time at home raising the children. The children grow up, and Spouse B never returns to her career. After decades of marriage, the spouses decide to divorce, and Spouse B needs spousal maintenance in order to get back on her feet.

The statute actually has a specific provision to address scenarios in which spousal maintenance was eliminated from the premarital agreement legally, but that elimination does not make sense at the time of the divorce. Under the enforcement section of the statute (750 ILCS 10/7), the law makes clear that “if a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement undue hardship in light of circumstances not reasonably foreseeable at the time of the execution of the agreement, a court, notwithstanding the terms of the agreement, may require the other part to provide support to the extent necessary to avoid such a hardship.”

Discuss Your Case with a Divorce Lawyer in Chicago

If you have questions about spousal maintenance and your premarital agreement, an experienced Chicago divorce lawyer can help. Contact M. Scott Gordon & Associates today to discuss your case.