What Is A Postnuptial Agreement, And When Do I Need One?

In addition to being an important step in an interpersonal relationship, marriage imposes a complex set of default legal and quasi-contractual obligations on each partner. Like a prenuptial agreement, a postnuptial agreement, sometimes called a marital property agreement, allows spouses to agree to change the terms of those default obligations. A valid postnuptial agreement can help spouses clarify their obligations, provide important protections, and be an essential part of estate planning

Understanding what a postnuptial agreement is, what must be present to ensure that the agreement is valid and enforceable under Illinois law, and when a postnuptial agreement can benefit both spouses, can help you decide whether a postnuptial agreement is right for you.

What Is A Postnuptial Agreement?

Like a premarital agreement, a postnuptial agreement is a written contract between spouses that addresses the distribution of a couple’s assets and debts in the event of a divorce or legal separation. In fact, the only significant difference between a prenuptial agreement and a postnuptial agreement is timing: while a premarital agreement is entered into before marriage, a postnuptial agreement can be signed by the parties at any time.

In addition to providing for distribution of assets and liabilities, a postnuptial agreement can also dictate the terms and amount of spousal support and distribution of life insurance in the event of separation or divorce. The agreement can also include a “choice of law” provision, in which the spouses agree which state’s law will apply if the agreement needs to be interpreted by a court later. 

Why Consider A Postnuptial Agreement?

In addition to the reasons spouses might enter into a prenup — the protection of one spouse’s significant assets or clarifying the parties’ obligations in the event of divorce or separation — a couple might enter into a postnuptial agreement for varied reasons. A postnuptial agreement can serve to clarify one spouse’s interest in a business venture, to protect a spouse from some forms of debt, especially if a spouse’s premarital debt has been paid with joint funds over time, or for spouses to clarify their rights and obligations after a change in financial circumstances.

A postnuptial agreement can also be a critical component of estate planning, particularly if the marriage is not the first for one or both parties. Like a premarital agreement, a postnuptial agreement allows spouses to agree on distribution of real or personal property upon the death of a spouse. The document can also require that each spouse create other estate plan documents, such as a will, trust, or power of attorney, to carry out the terms of the parties’ contract. 

How Are Postnuptial Agreements Handled In Illinois?

In Illinois, postnuptial agreements are governed by the same set of laws that govern interpretation of prenuptial agreements and divorce settlements: Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/502. Illinois has also adopted the Uniform Premarital Agreement Act, a law that helps to ensure that pre- and postnuptial agreements are valid and enforceable across state lines. As with premarital agreements, postnuptial agreements are generally valid and enforceable, except in the case of agreements that may violate public policy, such as child support or agreements that purport to dictate the parties’ non-financial behavior.

Postnuptial agreements can be invalidated by a court in certain circumstances, including if one spouse signed the agreement under duress — that is, that the spouse lacked free will in deciding to sign. As one might expect, this issue comes up with greater frequency in the case of postnuptial agreements than other types of agreements, due to the potential for undue influence by one spouse over the other. Couples considering postnuptial agreements, therefore, should guard against a later claim of duress by ensuring that each spouse is represented by an attorney at the time the agreement is signed. 

Do I Need A Postnuptial Agreement?

For couples who do not have a premarital agreement in place, a postnuptial agreement can be a useful tool, particularly in the case of blended families and spouses with previous marriages. This type of contract can also be used if a couple’s situation changes during the course of a marriage, including as a means to isolate some kinds of debt and to protect a spouse’s interest in a solo venture. For some couples, this document can provide peace of mind that each spouse’s interests will be protected in the event of a separation or divorce. 

An experienced family law attorney is your best resource in understanding the advantages and limitations of a postnuptial agreement, and whether one is right for your situation. 

Ready to Move Forward? Our Chicagoland Family Law Attorneys Are Here for You

A postnuptial agreement can help your marriage to adjust to changing and evolving circumstances, and offer certainty during uncertain times. Knowing that your assets are protected and your finances will be in order can help you move forward with confidence and peace of mind. 

The attorneys and staff of The Law Offices of J. Jeltes, Ltd. are here to help you navigate this challenging topic and begin your marriage with a strong foundation.

At The Law Offices of J. Jeltes, Ltd., we are here to stand by you during some of life’s most challenging and unpredictable transitions. Offering more than 20 years of combined experience, our legal professionals are driven, attentive, and dedicated to achieving the best results possible. 

We truly understand that every situation is unique, and before hiring our firm our attorneys will provide you with a comprehensive one-on-one consultation to discuss your legal concerns and goals. If you have any more questions about any aspect of family law in Illinois, don’t hesitate to reach out to our team of experienced and compassionate advocates to continue the conversation.