For the first time since 1990 when the Uniform Premarital Agreement Act was adopted in many states, a prenuptial agreement was deemed invalid.  The written order was signed and entered by the Honorable Judge Martin Zopp in McHenry County, Ill., today, and declared a multi-million dollar estate to be marital property in the matter of Foster v. Foster, a dissolution of marriage.  Judge Zopp issued an oral ruling on the matter, overturning the prenuptial agreement,  in December of last year.

As Mrs. Foster's attorney, I believe this landmark decision by Judge Zopp is a demonstration of the system at work.  The Uniform Premarital Agreement Act was designed to protect the parties and the Court proved it will not tolerate diversions from the law.

Specifically, the Court found:

• There was possibly manipulation by Mr. Foster of Mrs. Foster’s legal representation but it is not totally clear based on the evidence;
• Mrs. Foster did not have knowledge nor the reasonable ability to obtain knowledge of Mr. Foster’s property or financial obligations based on the circumstances of the case;
• The provisions in the pre-nuptial agreement were disproportionate at the time the agreement was made and there was a disproportionate treatment of the petitioner by the respondent with regard to the disposition of property;
• The relative economic positions of the parties at the signing of the agreement was disproportionate;
• The pre-nuptial agreement executed by the parties is unconscionable as a matter of law and therefore invalid and unenforceable against the Mrs. Foster; and
• Mr. Foster has not met his burden to establish that properties valued at nearly $2.5 million, are non-marital.

The result of the ruling is Mr. Foster will share equally with Ms. Foster, a retired school teacher, the nearly $2.5 million marital estate garnered during their 16.5-year marriage. 

This case offers two lessons to anyone considering entering into a prenuptial agreement or facing divorce:

1. There are a number of critical issues to consider when preparing a prenuptial agreement, including that each of the parties are represented by separate legal counsel.  Be sure to select an attorney who is intimately familiar with each of these issues.
2. Having a prenup does not mean you should give up and give in should your marriage end in divorce.  Find a lawyer who can review your prenup and who is aggressive enough to question its validity.

If you need representation in drafting, defending or challenging a prenuptial agreement, click here to contact our firm.