Prenuptial agreements are created before marriage and contractually outline how assets and other financial matters should be handled in the event of a divorce. Postnuptial agreements, meanwhile, serve the same purpose but are made after the couple is already married. Both agreements follow the same legal principles under Illinois law and can provide similar protections for your financial interests.
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Pre and Postnuptial Agreements in Divorce Cases
More and more couples are choosing to enter into a prenuptial or postnuptial agreement. These agreements are contracts between spouses used to govern how they will divide assets and address other financial concerns should they divorce. Such a contract is called a “prenuptial agreement” if it is made before marriage, or a “postnuptial agreement” if it is made after marriage. There are, however, limits as to what can be controlled by prenuptial or postnuptial agreements. There are also some circumstances where a judge will not enforce a prenuptial or postnuptial agreement.
When your divorce involves a prenuptial or postnuptial agreement, you may be worried about how the agreement will affect your interests. At Reifman Law Offices, we have close to 20 years of experience in navigating the complexities of the divorce process. We will review your case closely and offer you guidance throughout the process of resolving your divorce.
How is a Prenuptial or Postnuptial Agreement Created?
Illinois has adopted the Uniform Premarital Agreement Act, which sets out a few requirements. The agreement must be signed by both parties, but the signing does not have to be witnessed by anyone else, nor does it need to be filed with the court. It is not required that each spouse has their own independent attorney review the agreement, although it is advisable. Both prenuptial and postnuptial agreements can be altered or revoked at any time during the marriage.
If you are considering making a prenuptial or postnuptial agreement, we are equipped to help you. Having a prenuptial or postnuptial agreement in place does not mean that your marriage will end in divorce. In fact, being able to communicate with your spouse and reach an agreement can be a sign of a strong marriage. Prenuptial and postnuptial agreements do not just come into play during a divorce – they often include terms regarding what will happen to property or finances if you are still married when one spouse passes away. An attorney can facilitate this communication and aid you and your spouse in reaching an agreement that works for both of you.
What Can Be Addressed in a Prenuptial or Postnuptial Agreement?
These agreements typically cover how property will be distributed and finances will be handled should the couple divorce. A prenuptial or postnuptial agreement may govern things like:
- Whether spousal maintenance will be paid
- Who owns certain pieces of property
- Who is responsible for certain debts
- Who will receive financial benefits or other property upon the death of one spouse
- A prenuptial or postnuptial agreement cannot be used to govern:
- Child support
- Child custody issues, also known as the allocation of parental responsibilities
Issues of child support and child custody are always decided based on the best interests of the child. A parent cannot sign away a child’s right to receive financial support from another parent, nor can a couple decide who will be primarily responsible for parenting a child after a divorce in advance. The judge must examine each unique case and make decisions on the basis of what is best for the child. At Reifman Law Offices, we can assist you in the creation of prenuptial and postnuptial agreements that will stand up to scrutiny from the court and give you the long-term security and peace of mind you deserve.
Enforceability Concerns
There are certain situations where a prenuptial or postnuptial agreement is not enforceable. Reasons a court might not enforce a prenuptial or postnuptial agreement include:
Coercion
One spouse signed the agreement involuntarily because the other spouse coerced them. Coercion could involve blackmail or other unfair threats. Simply refusing to marry without a prenuptial agreement is not enough to prove coercion, but the court will consider how much time passed between when the agreement was signed and when the marriage took place.
Unconscionability
This means that the agreement is drastically unfair. If spousal maintenance is waived in the agreement, but enforcing this term would leave one spouse unable to provide for themselves without public assistance, the court may not enforce this part of the agreement.
Dishonesty
If one spouse concealed financial assets or debts from the other before the agreement was signed, a court may not enforce the agreement. Both spouses have a right to know the other’s true financial situation before entering into an agreement.
A prenuptial or postnuptial agreement with unenforceable elements can create serious issues in a divorce. With this in mind, it is important to work closely with a qualified attorney, both in creating your agreement and during your divorce.
Contact a Schaumburg Prenuptial and Postnuptial Agreement Lawyer
If your divorce involves a prenuptial or postnuptial agreement, it is important to have a lawyer protecting your interests. To learn how Reifman Law Offices can help, call 847-299-8433 and begin with a free consultation. We have locations throughout the Chicago area in Arlington Heights, Palatine, Elk Grove Village, Schaumburg, Hoffman Estates, West Dundee, Barrington, Streamwood, and Rolling Meadows.
FAQs About Prenuptial and Postnuptial Agreements in Illinois
Are any prenuptial and postnuptial agreements enforceable in Illinois?
When properly created, these agreements are generally enforceable in Illinois under the Uniform Premarital Agreement Act. However, courts may refuse to enforce agreements that were signed under coercion, are unconscionably unfair, or were based on dishonest disclosure of assets or debts. Working on a prenuptial or postnuptial agreement with an experienced attorney helps ensure that it meets all legal requirements for enforceability.
Can these agreements address child custody or child support?
No, prenuptial and postnuptial agreements cannot include provisions regarding child custody or child support. Illinois law requires that all decisions about children be made based on their best interests at the time of any legal proceeding.
Can a prenuptial or postnuptial agreement be changed after it is signed?
Yes, these agreements can be modified or completely revoked at any time during the marriage, provided that both partners agree to the changes in writing. The same legal standards that applied to the original agreement must be met for any modifications.
Do I need an attorney to create a prenuptial or postnuptial agreement?
While Illinois law does not require each spouse to have independent legal representation, it is highly recommended. An experienced attorney can ensure that your agreement is legally sound, properly addresses your concerns, and meets all requirements for enforceability.
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