WEDNESDAY, APRIL 24, 2019 | SERVING CHICAGO’S LEGAL COMMUNITY FOR 164 YEARS | CHICAGOLAWBULLETIN.COM VOLUME 165, NO. 80 Don’t let love get in the way with premarital agreements Premarital agreements exe- based on market quotes, cuted, so he could show the cuted in Illinois after 1990, appraisals or estimates; and agreement was uncon- when the Uniform Premarital that the parties understood scionable, the disclosure was Agreement Act was adopted, that certain assets were diffi- unfair and unreasonable and became a little easier to cult to value, but notwith- he lacked knowledge of the enforce under a recent ruling standing that, the exhibits property and financial obliga- by the 2nd District Appellate were adequate disclosures of tions of the other party at the Court. the other’s assets, liabilities time the document was signed. In the case of In re Mar- and income, and that the par- These elements are all nec- riage of Solano, 2019 Il App ties expressly waived any right essary under Section 7(a) of (2d) 180011, the court held to disclosure of the property the Premarital Agreement Act that an agreement which was of the other party beyond the MODERN to block enforcement of a executed approximately 20 disclosure provided. FA M I LY post-act premarital agreement. days prior to the wedding, and The wrinkle is that Exhibits The trial court, however, where the nondrafting party A and B, which were each decided to limit the initial MICHELLE A. LAWLESS merely had the opportunity to party’s individual assets and inquiry, both in discovery and speak with an attorney about liabilities, did not actually list a testimony, to whether the hus- the agreement, was valid and schedule of assets as the lan- band had voluntarily executed MICHELLE A. LAWLESSis a enforceable because the hus- guage in the agreement indi- the agreement and whether partner at Schiller, DuCanto & band voluntarily executed the cated. Instead, each exhibit Fleck LLP whose practice he had voluntarily waived fur- document and he had volun- had the word “None” written concentrates on valuations of ther disclosure beyond the dis- tarily waived further disclosure in the space where the assets closely held businesses, tax closure of assets provided in of the wife’s assets and finan- typically would be listed. and estate planning matters, the agreement. cial situation. Exhibit “C” was the only sched- custodial and support Under Section 7(a) of the arrangements for minor While these facts themselves ule which listed an asset and Premarital Agreement Act, if children as well as multistate may not seem out of the ordi- stated that certain “Family either of these two factors jurisdictional disputes. She nary, there are two anomalies Business Property” was to were true, the agreement works with each client to find to this case which matrimonial remain wife’s nonmarital prop- would be valid. The trial court individualized solutions, law practitioners — and any erty. whether that is through ultimately validated the agree- lawyer asked to preview a pre- The wife filed a petition for collaborative settlement or ment. This lead the husband marital agreement — need to declaratory judgment asking traditional litigation. She can to appeal. understand. the trial court to enforce the be reached at The 2nd District held that The agreement had three agreement and took the posi- mlawless@sdflaw.com. the trial court had the author- schedules of assets attached to tion that the document settled ity to initially limit its consider- it as exhibits which included all of the parties’ property clas- The husband’s position was ation to the dispositive issues one for each party and a third sification issues. that the parties only intended of whether the husband had which referred to wife’s inter- The husband took the posi- for the agreement to apply to executed the agreement vol- est in her family’s business as tion that the agreement was the wife’s interest in her family untarily and whether he volun- her nonmarital property. unenforceable for three rea- business and that they had tarily and expressly waived The language in the agree- sons: (1) Exhibit B was agreed to not disclose any further disclosure of the wife’s ment stated that the exhibits improper because the wife other assets for that reason. assets. set forth were substantially all owned extensive assets and Trial court can narrow This is important because at of the parties’ individual assets property that were not prop- issues to key factors the time a petition for declara- and liabilities valued as of Dec. erly disclosed; (2) he was not The husband argued for his tory judgment is filed, if one 1, 2000. And they were to informed of the legal effect of ability to engage in full discov- party challenges the enforce- remain each party’s nonmari- signing the agreement; and (3) ery, including investigation into ability of the agreement, it is tal property; that the values the agreement was uncon- what assets the wife had at the often customary for discovery shown on the exhibits were scionable and unfair. time the agreement was exe- to commence on all prongs of Copyright © 2019 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.Section 7(a) of the act in order gests that there must be a cer- that practice matrimonial law have the authority to limit the for an attorney to assess his or tain degree of disclosure or and those who do not but may initial hearing (and discovery) her best argument to chal- knowledge of the party’s be called upon to review such to what it believes is the dis- lenging the validity of the undisclosed assets before a an agreement for a friend or positive issue. Therefore, prac- agreement. party can waive the right to family member. titioners should carefully craft This case allows the trial further disclosure. While representation by strategies and present them to court to limit discovery and In sum, a waiver can be volun- counsel by both parties is not the court as soon as possible. focus the hearing on the tary even where the other party a requirement for the agree- Finally, if a party does not prong of the statute on which has disclosed no assets at all. ment to be enforceable under disclose any assets in the the court wishes to focus. The court seemed to give the act, under Solano, meeting agreement, but there is a A waiver of further disclo- weight to the fact that the hus- with someone to review an waiver of further disclosure, sure is voluntary band had met with a family agreement that is ultimately the waiver very well may be The husband took the posi- member who was a criminal signed can have some weight valid. tion that unless a party has attorney to discuss the agree- on whether the court deems The lesson here is buyer made a fair and reasonable ment, even though the testi- the agreement was signed vol- beware. Signing a premarital disclosure of his or her assets, mony indicated that no advice untarily. agreement should not be the other party could not be was given with respect to the If a practitioner who is not done without the advice of deemed to have voluntarily content of the agreement. familiar with matrimonial law competent counsel, the waived the right to disclosure Nevertheless, husband was is asked an opinion on the understanding of each party’s beyond the disclosure made. deemed to have voluntarily contents of a premarital agree- rights and responsibilities This concept was flatly waived his right to further dis- ment, it would be prudent to under any agreement and rejected by the court. The closure of wife’s assets. refer the matter to a matrimo- understanding that courts will court held that nothing in the There are several takeaways nial attorney. enforce what may appear to be plain language of the act sug- for all attorneys, both those Second, trial courts now a less than fair agreement. Copyright © 2019 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media.