In the state of Illinois, the equitable distribution law for divorces divides the assets fairly, not equally. When individuals desire to manage and maintain certain assets, individuals can choose to pursue available nuptial agreements. Many individuals who partake in nuptial agreements use one of two options: Prenuptial (before marriage) and postnuptial (after marriage). Postnuptial agreements are legal documents that are designed to allocate how property and other assets are divided in the future if there is a divorce between parties. It is like a premarital agreement, except it is signed after the parties have already been married. However, postnuptial agreements can be more easily overturned if there are assets that have been comingled already during the marriage or received during the marriage. Any income earned during a couple’s marriage and any property or other money accumulated during a marriage is presumed to be marital property unless otherwise allocated.
Postnuptial agreements can be advantageous for individuals who are already married, and it is too late for them to form a prenuptial agreement. Other individuals may desire a postnuptial agreement because they have minor children from a prior relationship, own a business, to protect a spouse from debt, or who came into a large inheritance or non-marital gift and want to ensure it is protected. Postnuptial agreements can be valuable and provide valuable benefits to the couple whether they face a future divorce or stay together.
Postnuptial agreements have to be for the purpose of preserving the marriage, which may be contrary to why people think they are necessary. The reason to initiate a postnuptial agreement is not to anticipate a divorce, but for the purpose of trying to save marriages. This can be because the longer individuals are married, sometimes the longer a spousal support obligation may be or the larger share of the property goes to the other spouse. This in turn could cause individuals who are thinking of divorce, to try and get out of the marriage more quickly instead of trying to work on their marriage with their spouse.
There will be times, however, when a pre-nuptial agreement/postnuptial agreement will not be enforced. Because postnuptial agreements are intended to be a joint collaboration between the parties, a postnuptial that puts one party at a severe disadvantage, the court may deem this as unenforceable. Other possibilities include: if there are intentional misrepresentations of assets or if there is coercion to sign the agreement against their will. Additionally, a postnuptial agreement cannot assign sole custody to only one party if it is unreasonable and not in the best interest of the children. Adhering to Illinois state law when drafting a proposed postnuptial agreement is key to preventing the agreement from being unenforceable in the future. If you have further questions, contact our office to obtain and appointment with one of our attorneys.