You may already know what a prenuptial or pre-marriage agreement is. A prenuptial agreement is a financial and legal document that couples who are about to marry may prepare, in or near the Chicago area, with the help of a Chicago family law attorney.

A prenuptial agreement or a “prenup” allows each prospective spouse to protect his or her personal property, to be shielded from any liability for the other spouse’s debts, and to establish other provisions and terms that will apply if the spouses eventually decide to divorce.

If you are already married, how can you have the benefits of a prenuptial agreement? In Illinois, couples may prepare their own “postnuptial” agreements that are virtually identical to prenuptial agreements. Keep reading to learn why having a postnuptial agreement may be right for you.

What Are Postnuptial Agreements?

When a couple is already married, if they did not have a prenuptial document prepared, they still have the right to prepare a similar document. Postnuptial agreements in the State of Illinois can accomplish exactly what prenuptial agreements accomplish.

The only real difference is that postnuptial agreements are prepared and signed after – instead of before – the marriage ceremony. Understanding what’s legal in postnuptial agreements is the key to ensuring that your own agreement will be honored and enforced by an Illinois divorce court.

What Do Postnuptial Agreements Accomplish?

The effect of a postnuptial agreement is to resolve in advance any potential disputes about the couple’s finances, assets, inheritances, and almost any other dispute – except for disputes regarding children – that may emerge if the spouses divorce.

Postnuptial agreements are legally valid in Illinois when both partners have agreed voluntarily to the document’s terms and provisions after making their own full disclosures of their properties, assets, and debts.

Postnuptial agreements may address properties, assets, and debts, but they may not determine child custody or child support matters, which may be resolved only during the divorce process.

How Do Postnuptial Agreements Address Debts?

Usually, a debt owed by one partner before a marriage will not be considered a marital debt, but if the debt is paid out of marital funds, it may eventually be deemed a marital debt. To shield the other partner, a “postnup” may spell out which part of a debt is to be considered non-marital.

Illinois courts, however, have some discretion regarding postnuptial agreements. If the agreement does not “equitably” distribute the assets and debts – that is, if in the court’s view, the agreement is not fair – the court may modify the agreement.

That’s one reason why it’s important to have a postnuptial agreement prepared by an Illinois family law attorney who knows the law in Illinois and knows how to prepare a postnuptial agreement that will be enforced by the court.

What Is the Main Benefit of Having a Postnuptial Agreement?

For many Illinois couples who prepare a postnuptial or prenuptial agreement, the personal property provision will be the most essential aspect of the agreement.

Married couples usually commingle their assets and properties, but a postnuptial agreement allows each spouse to retain certain assets separately and apart from the jointly-owned marital properties and assets.

Postnuptial agreements allow you to “keep what’s yours,” so long as no provision in the agreement constitutes a violation of Illinois law.

Why Are Postnuptial Agreements Popular?

In almost every part of the country, according to a survey conducted by the American Academy of Matrimonial Lawyers, increasing numbers of couples are preparing postnuptial agreements.

One reason is that since the mid-twentieth century, skyrocketing divorce rates have led to more second marriages, and people who marry a second time are usually more cautious.

If a prenup was not prepared before the marriage, a partner’s spending habits or dubious behavior may emerge over time and may be the reason why the other spouse seeks a postnuptial agreement.

What Else Should You Know About Postnuptial Agreements?

Even if the marriage is doing fine, preparing a postnuptial agreement can help a couple to define their financial situation precisely and clearly by identifying personal properties and possessions and by specifying each partner’s responsibilities.

In the past, many people believed postnuptial and prenuptial agreements somehow “promoted” the idea of divorce. Postnuptial and prenuptial agreements only began to be honored by most states in the 1970s.

Today, postnuptial and prenuptial agreements are popular, and there is a general acknowledgement that couples who prepare these agreements are being practical and realistic. Illinois divorce courts routinely and dependably honor legally valid postnuptial agreements.

The most important restrictions, as mentioned previously, are that prenuptial and postnuptial agreements in Illinois cannot determine child custody or limit child support. A child’s right to support from each parent is an absolute, fundamental legal principle in this state.

Can Postnuptial Agreements Be Challenged in Court?

Because no one can predict the future, over the course of a marriage, your postnuptial agreement may not necessarily remain in each spouse’s best interests.

In a divorce, if a postnuptial agreement will leave one spouse with less than the spouse would be entitled to if the agreement were not in place, that spouse may ask the judge to set the agreement aside.

If that happens, the judge then will determine if the agreement is fair compared to what the court would do without the agreement. When the difference is considerable, an Illinois judge will set aside the unfair provisions of the agreement.

Learn More About Postnuptial Agreements

Illinois couples who would like to find out more about preparing a postnuptial agreement should speak promptly to a Chicago family law attorney who will answer your questions and address your concerns.

If the person you plan to marry has suggested preparing a prenup, or if your spouse wants a postnuptial agreement, ask an experienced family lawyer to prepare the document and to make sure you understand completely its terms, conditions, and provisions.

If you already have a prenuptial or postnuptial agreement in place, have you reviewed it recently? Our lives change over time, and so do the laws, so it may be time to ask a family law attorney to review the document to ensure that it’s still valid, fair, and adequate for both partners.

Divorce is difficult, and in some cases, it’s unexpected. A prenup or a postnup helps you be prepared for whatever may happen. Speak about it with your spouse, and then speak with an Illinois family law attorney to learn more or to begin preparing your postnuptial agreement.