A Postnuptial Agreement is “an agreement entered into during marriage to define each spouse’s property rights in the event of a death or divorce.” Black’s Law Dictionary (11th ed. 2019).
Marriage is a journey that can often involve navigating financial pitfalls and planning for a successful future together or possibly apart. One of the tools that can assist couples navigate this is a postnuptial agreement. A postnuptial agreement in Illinois is a legal document created after marriage that outlines how a couple’s non-marital and/or marital assets, debts & financial matters will be handled in the event of a separation, a divorce or death. Postnuptial Agreements offer flexibility for couples who may need to address changes in their circumstances AFTER getting married.
At Capraro Law, we have the experience, understanding and knowledge on how to navigate and draft a Postnuptial Agreement.
Prior to the passage of the Uniform Premarital Agreement Act, postnuptial agreements were fairly rare. This is because state laws varied so much that if you moved, the contract might be unenforceable. Thanks to the Premarital Agreement Act, postnuptial and prenuptial agreements are much more easily enforced across state lines. Does that mean you should get one? That’s harder to answer.
There are many reasons a couple might choose to enter a postnuptial agreement, including:
- To protect significant premarital wealth
- To isolate a business venture taken by just one spouse
- To protect a spouse from debt
- Because they wanted a prenup but waited too long
Of course, this is by no means a complete list of every reason why couples choose to obtain a Postnup Agreement. If this is something you are considering, however, always have separate lawyers. Even when couples agree 100% on every aspect of a postnuptial agreement, it’s worth having an extra set of eyes to make sure nothing is overlooked.
Also, be wary if your spouse is pressuring you into signing a postnuptial agreement against your will, or if only they have a lawyer present. A postnuptial agreement should be something you mutually agree on.
Do Postnups Hold Up in Court?
When contracts are entered into, it is usually because two parties are bargaining over something, such as a house or property. If one party does not agree to the terms, they have the ability to walk away from the agreement. With postnuptial agreements, the parties are already married, so there is no bargaining power. Some courts will cautiously examine a postnuptial agreement. However, if the agreement meets specific conditions, such as;
- Full Disclosure: Both parties must provide a complete and accurate disclosure of their assets, liabilities, income, and financial circumstances. This transparency ensures that each spouse is fully informed about the other’s financial situation when entering into the agreement.
- Voluntary Agreement: The agreement must be entered into voluntarily by both spouses, without any coercion, duress, or undue influence. Each party should have a clear understanding of the terms and implications of the agreement, and it is advisable for both spouses to seek independent legal counsel to ensure informed consent.
- Fair & Reasonable Terms: The terms of the postnuptial agreement must be fair and reasonable at the time of its execution. Illinois courts will examine the fairness of the agreement’s provisions, considering factors such as the distribution of assets, spousal support arrangements, and the overall balance of financial responsibilities between the spouses.
Illinois courts generally uphold postnuptial agreements as long as they are created in accordance with the state’s legal requirements and principles of fairness. If you are looking for more information in regard to postnuptial agreements, then contact Capraro Law today.
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