Prenuptials vs. Postnuptials - Considerations for Spouses

Most people don’t like to think about divorce when they are planning a wedding or if all is going well after marriage; but should divorce happen, it can be a lot less painful if certain plans are made in advance.

Realistically speaking, divorce is a common occurrence in the United States, with about 40 to 50 percent of first marriages ending in divorce, and the divorce rate for subsequent marriages is even higher.  Illinois is an equitable distribution state, meaning the courts will divide property according to what the judge feels is fair and equitable, and not necessarily equally. Since many couples do not want to leave the fate of their property in the hands of the court should they divorce, and since people are getting married later, with assets they may not wish to commingle, it makes sense to have an agreement in place to simplify matters should the occasion arise. And working out the terms of an agreement can actually help strengthen a marriage by dealing with issues and providing a solid foundation that will protect both spouses.

Agreements can be made either before marriage (prenuptial) or after marriage has taken place (postnuptial).  Both types of agreements do the same thing, and which is preferable depends on your individual situation.

 

Prenuptial Agreements

Under Illinois law, a “prenup,” or prenuptial agreement, made before marriage between potential spouses, is called a “premarital agreement” and is governed by the Illinois Uniform Premarital Agreement Act.  These agreements typically state how a couple will handle assets, debts, and other financial issues during their marriage and how these matters will be handled should the marriage end.  A premarital agreement is a contract that becomes effective upon marriage.

Agreements may address issues that include:

 

  • Who pays alimony after divorce, how much and for how long
  • Which spouse will own what property after divorce; how property will be sold, transferred, or managed, and what will happen to property acquired during the marriage
  • Creating a will or trust to carry out the terms of the agreement
  • Who has rights in the death benefit from a life insurance policy
  • What happens to the future inheritance for children from another marriage
  • Protecting a business, retirement accounts, or any pre-owned property from potential division if you divorce.

 

A premarital agreement may not adversely affect the right of a child to support or bind courts in determining child custody. Agreements are not valid if they are entered into involuntarily or as the result of coercion or fraud.

 

Postnuptial Agreements

In Illinois, a postnuptial agreement is similar to a prenuptial agreement, but it is entered into after a couple is married.  Like prenuptial agreements, postnuptial agreements are legal contracts where the parties agree what would happen to the marital property and spousal support should a divorce occur.  Also like prenuptial agreements, they may be overruled by the courts in child support or custody situations or if they were signed under coercion or fraudulent conditions.

Postnuptial agreements may be made if couples didn’t have the time or inclination to write agreements before marriage or if circumstances change that increase the need to do so.

 

Dangers of Pre- and Postnuptial Agreements

While these agreements can benefit both spouses, there are some risks involved.  Since these agreements are legal contracts, you cannot change your mind and try and back out of one because you didn't read or understand the document.

As in any legal contact, you should make sure not to give away important rights that could hurt you in the event of a divorce. It’s a good idea for both spouses to have their own lawyer examine the agreements and make sure their rights are protected and that the documents are written and executed properly.

 

Agreements are allowed to be amended or canceled at any time in writing if this notice is signed by both spouses.

NOLODRUPAL-web1:DRU1.6.12.2.20161011.41205