Prenuptial and Postnuptial Agreements
If a couple agrees on how issues should be resolved should they ever face a divorce, it can be far better to address those issues ahead of time. In this circumstance, a family lawyer can put an agreement into place to ensure that the couple’s wishes are carried out in case they do get divorced. These are known as prenuptial or postnuptial agreements based on whether they were created before or after the marriage.
The term “prenup” holds many connotations about why it was put into place. Regardless of those reasons, the prenuptial or postnuptial agreement holds a very important and powerful place in family law.
At the Law Offices of Joshua E. Stern in Evanston and Chicago, we are happy to discuss this type of agreement at any time, whether it is prior to or after your marriage. Our office can make sure any agreement you wish to make will hold up under Illinois law.
What is a prenuptial agreement?
A prenuptial agreement is a contract between two people who are contemplating forming a marriage or civil union. A prenuptial agreement addresses the parties’ respective rights and obligations in the event of a divorce.
What is a postnuptial agreement?
Similar to a prenuptial agreement, a postnuptial agreement is a contract between two people who are already married or have a civil union. A postnuptial agreement addresses the same topics as if it were created before the marriage. Even if the couple has already married, that does not stop an agreement from being put into place.
Do I need a prenuptial or postnuptial agreement?
The answer largely depends on whether your concerns can be addressed by a standard application of Illinois law. Of course, it’s likely best to consult with a family law attorney before making a decision.
It may help to think of prenuptial and postnuptial agreements as a type of insurance, similar to health insurance. Purchasing a health insurance policy doesn’t mean the purchaser expects to fall ill in the near future—only that he or she wishes to be prepared for the unforeseen.
Similarly, a prenuptial agreement doesn’t speak to the weakness of a marriage or civil union—It simply means that the parties have contemplated and are prepared for the unknown.
What do prenuptial and postnuptial agreements include?
Most financial matters, such as assets and business interests, are fair game when deciding what to include in pre- or postnuptial agreement. This can include:
- Maintenance (also called alimony or spousal support)
- Division of debts and assets
- Insurance requirements
- Payment of attorney fees
- Protection of businesses and intellectual property
- Nearly any other financial issue the couple wishes to address
While most financial issues may be addressed, neither prenuptial nor postnuptial agreements can address issues related to children the couple has or may have in the future. Issues that cannot be addressed in a prenuptial or postnuptial agreement include:
Illinois doesn’t allow these items in a prenup or postnup because it is against public policy to contract for any matter regarding the welfare of a child. Further, the court retains jurisdiction to modify any provision involving a child’s care. Even if something like parenting time were permissible in a prenup, it would be subject to easy modification—thereby rendering it unenforceable.
Benefits of Prenuptial and Postnuptial Agreements in Chicago and Evanston
The main benefit is allowing couples to define and protect any property they wish to remain separate. This is important because, when a couple marries, they create a marital estate. That marital estate possesses the debts and assets acquired during the marriage (excluding gifts, inheritance and property acquired in exchange for non-marital and premarital property). The definition of marital property in Illinois is particularly broad and covers everything from income and savings to business interests and intellectual property.
A pre- or postnuptial agreement allows the parties to modify the definition of marital property to exclude certain items. For instance, if one spouse intends to start a business during the marriage, the business-owning spouse may want to protect his or her business in the event of divorce. Similarly, if a spouse makes a substantial non-marital contribution to a marital asset—such as putting a down payment on a house—that spouse may want to be guaranteed repayment of his or her contribution.
Simply put, a pre- or postnuptial agreement allows the couple to define the terms of their marriage separate from Illinois law to better fit their relationship. Every couple’s relationship is unique; and while legal matters can be very nuanced, the court is often confined to strict decisions that may not be in the couple’s best interest. That’s why, for some couples, it may be better to arrive at an agreement prior to the marriage or a possible breakdown of the marriage.
For more information regarding the definition of a marital estate in Chicago, Evanston and the surrounding suburbs, please refer to our Property Division in Divorce page or contact our office at (847) 868-9584.
How does a prenuptial or postnuptial agreement relate to alimony?
In cases without a prenuptial or postnuptial agreement, Illinois courts will apply a spousal support formula to determine alimony, which is also called maintenance. A prenuptial or postnuptial agreement permits the parties to agree to whatever calculation they believe fairly reflects their circumstances. It’s not uncommon for parties to create their own formulas or agree to a mutual-waiver of maintenance should the marriage terminate within the first few years.
What should I know before signing a pre- or postnuptial agreement?
Like all contracts, the terms of the agreement cannot be forced. The parties must enter into the agreement knowingly, willfully and free from duress, coercion or mistake of fact.
Illinois law addresses these issues by requiring a full disclosure of each party’s assets and liabilities for every prenuptial agreement. This mandatory disclosure allows each person to make an informed decision. Since all valid prenuptial and postnuptial agreements must meet the above criteria, any agreement that falls short of Illinois law may be rendered null, in whole or in part.
Should you need to defend against the enforcement of a prenuptial or postnuptial agreement, do not hesitate to contact the Law Offices of Joshua E. Stern. We will guide you through the process and let you know what options you may have.
Contact an Evanston Family Law Firm
For questions regarding prenuptial and postnuptial agreements in Chicago, Evanston and the surrounding suburbs, contact the Law Offices of Joshua E. Stern at (847) 868-9584. We offer free consultations, and can meet you in our offices in Evanston or Chicago, or another location.