Illinois couples creating a postnuptial–similar to a prenuptial or premarital–agreement should carefully develop this document to ensure it will be valid and enforceable in the event of a divorce.

As noted in the recent case In re Marriage of Iqbal and Khan, it's important that the document does not “overreach” in what is required of either party or it will not stand in court.

The summary that follows is taken from the article “In re Marriage of Iqbal and Khan: A reminder not to overplay your hand in drafting postnuptial agreements” by Patrick B. Hurley which appeared in the December Family Law Newsletter of the Illinois State Bar Association.

Will Your Postnuptial Agreement Stand Up In Court: FACTS OF THE CASE

This particular case is somewhat different from other PNA cases in that, along with the more standard terms, it stated that the couple would base their relationship on the Holy Quran and appointed a person as a third party “Religious and Marital Counselor and Arbiter” of the couple's marital affairs.

The terms also included that the couple must consult with and obtain the approval and authorization of this third party arbiter for major issues such as finances, child rearing, work and divorce or separation.

In addition, if the wife should seek an “unreasonable divorce” she would lose all rights to her share of the marital home and either party seeking an “unreasonable divorce” would forfeit all custody rights to their three minor children, regardless of what is in their best interests.

Both parties were also prohibited from calling authorities for any incident except life-threatening emergencies without the arbiter's approval. Any party that did so would be in violation of the agreement.

Will Your Postnuptial Agreement Stand Up In Court: THE COURT'S RULING

After review, the appellate court ruled that the PNA was invalid and unenforceable for several reasons.

First, the lawyer who created it was the husband's nephew and later represented him for a time during dissolution of marriage proceedings. In addition, it was not clear whether the wife had legal counsel when negotiating the agreement.

The court also found the term unreasonable divorce (which is the basic grounds for the agreement) to be “vague, ambiguous, and uncertain” and stated that the overall terms of the PNA were “significantly one-sided or oppressive” in that they were aimed at keeping the wife from ever filing for divorce.

Finally, the forfeiture of custody requirement was too excessive for the court to agree with.

Will Your Postnuptial Agreement Stand Up In Court: THE LESSON FOR COUPLES AND LEGAL COUNSEL

When done well, a postnuptial or prenuptial agreement can create peace of mind for couples. As the outlined case shows, however, the agreement needs to benefit both parties in the event of dissolution of marriage and must be reasonable in its requirements for seeking a divorce.

If you are considering a prenuptial agreement prior to marriage in Illinois, or a postnuptial agreement after marriage, contact me for assistance with this important pre-marriage or post-marriage document to ensure your Postnuptial Agreement Stand Up In Court.