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Illinois Post-Nuptial Agreements

By Nottage and Ward on June 7, 2016

A post-nuptial agreement is similar to a prenuptial agreement. The basic difference between the two is that a post-nuptial agreement is created after the couple enters a civil union or marriage, rather than before. The most common purpose of a post-nuptial is to assign the division of assets should the couple decide to get a divorce or separate. The agreement can also be implemented in the event of a spouse’s death.

Some couples decide to forego signing a prenuptial agreement, which is only valid if entered before the couple gets married. In such a case, they still have the option to draft a postnuptial agreement. This agreement assures that assets are divided based on terms that the couple agrees upon. For example, property, finances, and vehicles can be assigned to either member to avoid a dispute in the case of a divorce. The agreement can help determine which items are marital property and which are personal property.

Why Get One?

If you and your spouse are wildly in love, excellent communicators, and haven’t seen a bump in the road for some time, it may seem silly to even consider getting a post-nup. Unfortunately, even the best relationships end. People change, get bored, or simply don’t see eye to eye anymore. A post-nuptial agreement is a great way to ensure that any potential divorce proceedings will be as quick and friendly as possible.

They’re also good to consider if it feels like the relationship is coming to an end. Both parties must willingly sign the agreement, so it isn’t something one spouse can do without the other agreeing to it. If things are going downhill and becoming heated, a post-nuptial agreement may be a great way to take a step back and make sure neither spouse is trying to attack the other during divorce proceedings.

However, it is important to know that not all divorce-related problems can be solved with post-nuptial agreements. If public policy impedes on the agreement, then it may not be enforced. For example, even if the agreement asserts child custody be given to a certain party, custody may not be granted if it’s not in the child’s best interest. In order for the post-nuptial agreement to be honored in court, it must be voluntarily signed by each spouse and not violate any laws or court policies.

Prenup vs Post-nup

If two people can enter into a post-nuptial agreement after their wedding, why bother with a prenup? Well, firstly post-nups may be more closely scrutinized by the court for fairness, especially if the couple chose to use the same legal counsel, which is not allowed with prenups. Furthermore, if one spouse insists on a caveat the other spouse doesn’t like, there is little room for compromise, as the wedding has already taken place and the couple are already legally married.

Without close inspection of the contract, spouses may also be forced to forfeit rightfully owned property. Therefore, it’s in each party’s best interest to thoroughly inspect and prepare the document with their lawyer’s aid. Legal counsel can also assure the draft is drawn appropriately, which will eliminate the chance of the agreement being found void during the divorce proceedings. Prenuptial agreements provide more time, as the couple is not yet married, to get proper legal advice in order to avoid such mistakes in the event of a divorce.

It is important to remember that a post-nuptial agreement is a legal contract, meaning neither party can back out of it later because they didn’t understand it. For that reason, it is imperative to seek legal counsel before signing a post-nuptial agreement.

What Is Required When Getting a Post-nup?

There are several elements that are required when two spouses decide to create a post-nuptial agreement.

Firstly, it must be written down. This cannot be a verbal agreement, as there is no way to prove the terms were agreed upon and it will not hold up in court.

Both spouses must also sign the post-nup voluntarily. If there is any indication or evidence that one spouse was forced to sign, then the document is void. Both parties must also be open and honest about the contents with each other. Everyone should understand and agree to the terms laid out.

Fairness is taken heavily into consideration when deciding if a post-nuptial is valid and enforceable. If it seems as though the document is heavily weighted in one spouse’s favor or that it is unjust towards a spouse, then it will not be enforced.

Finally, the agreement must be considered validly executed. All states have their own specific regulations around post-nuptial agreements and how they must be laid out. Illinois is no different. Don’t assume that your post-nup is legally binding without having an experienced divorce attorney look it over.

Contact Us Today

Post-nuptial agreements are just one element of the often-arduous divorce process. Let us help you protect your rights. If you have questions about entering into a post-nuptial agreement, or any other inquiries about family law, please contact one of the experienced lawyers at Nottage and Ward, LLP. We can be reached at (312) 332-2915.

Lasted edited on 3/9/2020

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