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In re Marriage of Barnes

August 28, 2001


Appeal from Circuit Court of McLean County No. 99D19 Honorable James E. Souk, Judge Presiding

The opinion of the court was delivered by: Justice Cook


Shortly before their marriage in July 1991, Sandra and Edward Barnes executed a premarital agreement (Agreement). Both parties were represented by separate counsel. The Agreement defined the parties' rights on the issues of property and maintenance in the event of a divorce. At all times relevant here, Edward was the sole shareholder and chief executive officer (CEO) of Glass Specialty Company, Inc. He earns in excess of $250,000 per year and enjoys various perks, including use of the company plane and vehicles. Shortly after the marriage, Sandra quit her office job (earning $19,000 per year) to be able to travel with and spend more time with Edward.

Sandra and Edward separated in December 1998. Sandra filed for divorce on January 14, 1999. Sandra and Edward have no children together. Sandra appeals from the trial court's judgment enforcing the terms of the Agreement. She also asserts that the trial court improperly compelled privileged testimony and failed to award her adequate attorney fees. We affirm.


Illinois law relating to premarital agreements has gradually evolved to permit agreements that define rights and obligations upon divorce. Historically, premarital agreements controlled the devolution of the parties' property upon death, not upon divorce. 1 H. Clark, Domestic Relations §1.9, at 48 (2d ed. 1987). In fact, premarital agreements that attempted to limit spousal maintenance or distribute property upon divorce were invalidated on public policy grounds because they were said to be conducive to divorce. 1 H. Clark, Domestic Relations §1.9, at 49, 53 (2d ed. 1987).

That same rationale was used to invalidate postnuptial agreements regarding maintenance awards or property distribution that were effective upon separation or divorce. Postnuptial agreements were allowed, however, where the parties had already separated or were on the point of separating (separation agreements). 2 H. Clark, Domestic Relations §19.1, at 411 (2d ed. 1987). Clark notes that it was never clear why executing a postnuptial agreement while the parties were still living together was conducive to divorce, but the courts found that it was. 2 H. Clark, Domestic Relations §19.1, at 411 (2d ed. 1987). More recent statutes make it clear that there is no longer any general public policy opposed to agreements contemplating divorce. 2 H. Clark, Domestic Relations §19.1, at 411 (2d ed. 1987). In 1977, the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) made separation agreements dealing with property and maintenance valid. 750 ILCS 5/502 (West 1998). "This section entirely reverses the older view that property settlement agreements are against public policy because they tend to promote divorce." Uniform Marriage and Divorce Act §306, 9A U.L.A., Comment, at 249 (1998). Separation agreements, however, which are agreements "attendant upon the dissolution of [the] marriage," are postnuptial agreements, not premarital agreements. Since 1977, section 503 of the Dissolution Act has allowed premarital agreements that deal with questions of marital property. 750 ILCS 5/503(d)(7) (West 1998) (court shall consider "any antenuptial agreement of the parties"); In re Marriage of Jelinek, 244 Ill. App. 3d 496, 501-02, 613 N.E.2d 1284, 1289 (1993). There was a question, however, whether the Dissolution Act changed the previous rule that a premarital agreement could not deal with questions of maintenance. 750 ILCS 5/504(a)(11) (West 1998) (factors to consider when awarding maintenance include "any valid agreement of the parties"); see Eule v. Eule, 24 Ill. App. 3d 83, 87, 320 N.E.2d 506, 510 (1974) (holding invalid a premarital agreement waiving temporary alimony if marriage did not last seven years); Warren v. Warren, 169 Ill. App. 3d 226, 231, 523 N.E.2d 680, 684 (1988) (declining to enforce provision in agreement waiving right to maintenance upon divorce even though wife entered agreement with "full knowledge"); cf. In re Marriage of Burgess, 138 Ill. App. 3d 13, 15, 485 N.E.2d 504, 505 (1985) (premarital agreements determining right to maintenance valid if "fair and reasonable"). The legislature, however, has now answered that question and affirmed the validity of premarital agreements.

Effective January 1, 1990, Illinois adopted the Uniform Premarital Agreement Act (Premarital Agreement Act) (750 ILCS 10/1 through 11 (West 1998)). The Premarital Agreement Act confirms that prior to marriage, parties may contract with respect to the "disposition of property" and "modification or elimination of spousal support." 750 ILCS 10/4(a)(3), (a)(4) (West 1998). Since the Agreement at issue here was executed in 1991, the Premarital Agreement Act applies to our review of the issues presented.


In answer to Sandra's divorce petition, Edward asserted the terms of the Agreement as controlling on the issues of property distribution and maintenance. Sandra acknowledged that she signed the Agreement but claimed it was unenforceable because it was obtained by coercion and duress. 750 ILCS 10/7(a)(1) (West 1998) (premarital agreement is unenforceable if not voluntarily executed).

When asked at her deposition to define the nature of the alleged coercion, Sandra testified as follows:

"Q: Again, why don't you tell me what the element of coercion is with regard to signing this agreement marked exhibit No. 1.

A: There would be no wedding unless this thing was signed.

Q: And this is the coercion that you were speaking of in your answer?

A: Yes.

Q: Would you explain again why you deny the request to admit that you were under no duress from any person or entity when you signed the agreement? Tell me what duress you were under.

A: The time line was the duress coming from Ed, either sign this or there won't be any wedding."

The Agreement was witnessed by Sandra's attorney, Randall Ehlers. The Agreement establishes that Sandra had consulted with her attorney, who had reviewed and advised her as to her rights under the Agreement. Further, the signature page of the Agreement included an acknowledgment that the parties fully reviewed the terms and provisions and that the execution was a voluntary act, devoid of coercion or duress. Sandra also acknowledged that she had been fully informed of Edward's wealth, property, estate, and income.

In June 1999, Edward moved for summary judgment as to the validity of the Agreement. The trial court found that the Agreement was valid and controlled issues of property distribution and maintenance. Sandra argues that there are disputed issues of fact relating ...

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