Prenuptial vs. Postnuptial Agreement – Which is Better?

 Posted on October 24, 2024 in Prenuptial and Postnuptial Agreements

Both prenuptial and postnuptial agreements are legal, binding contracts that are meant to protect the interests of both spouses in the event of divorce, separation, or even death. While both agreements serve a similar purpose, depending on your specific situation, one might have benefits over the other.

Both types of agreements can help set expectations as well as prevent asset disputes between the spouses. If you and your soon-to-be spouse are considering a premarital agreement, speaking to a knowledgeable Wheaton, IL family law attorney from Andrew Cores Family Law Group is beneficial. The same holds true for a postnuptial agreement.

What is a Premarital or Prenuptial Agreement, and What Are the Benefits?

A prenuptial agreement is drawn up and signed by both parties before the marriage takes place. The couple determines how their assets will be divided if their marriage ends. While a prenuptial agreement is accepted in all 50 states, each state may vary in its requirements and interpretation.

While some believe a prenuptial agreement takes the romance out of the marriage, a premarital agreement can save a lot of heartache if a divorce occurs, especially if this is not the first marriage for either or both parties or if there are children from previous relationships. A premarital agreement:

• Protects an individual’s separate property, including a business, inheritance, or other premarital assets.

• Clarifies spousal support, providing predictability in case of divorce.

•  Defines each spouse’s responsibility for pre-existing debts.

• Clearly spells out how assets will be divided if the marriage ends.

• When one spouse has significant assets or expects to receive a large inheritance from a family trust, a prenuptial agreement is particularly important.

What is a Postnuptial Agreement, and What Are the Benefits?

A postnuptial agreement is similar to a premarital agreement in many ways but is created after the marriage and before a separation or divorce. Like a premarital agreement, it addresses spousal support, asset division, separate property, and debt allocation and is often implemented when a married couple has a significant change in financial circumstances. A postnuptial agreement can address any new assets one or both spouses acquired since the marriage.

Timing is the fundamental difference between a postnuptial agreement and a premarital agreement, although one significant difference is the legal requirement of "consideration." For a premarital agreement, the act of getting married is the consideration. A postnuptial agreement may require additional consideration, such as changes in financial responsibilities or exchanging assets.

Is a Prenuptial Better than a Postnuptial?

While both prenuptial agreements and postnuptial agreements require full financial disclosure from each party, a postnuptial may not have the same level of legal scrutiny as a prenuptial in the event of a divorce or separation. The theory is that by the time a couple signs a postnuptial agreement, each is fully aware of the other’s assets. On the flip side, a prenuptial agreement tends to be a bit more flexible than a postnuptial agreement since a postnuptial must take the existing marital status into consideration.

Although a prenuptial agreement may be the better choice under most circumstances, a postnuptial agreement affords the couple a second chance to protect individual assets or provide a safety net for future changes. Neither a prenuptial nor a postnuptial agreement can define matters related to a couple’s existing or future children; the courts will make decisions based on the best interests of the child or children.

Contact a DuPage County, IL Prenuptial Agreement Lawyer

No matter where you are in your relationship or what you want to accomplish, it can be helpful to discuss the matter of a prenuptial or postnuptial agreement with an experienced Wheaton, IL prenuptial agreement attorney from Andrew Cores Family Law Group. Attorneys Andrew P. Cores and Wendy M. Musielak are currently Fellows with the Collaborative Law Institute of Illinois. Our goal is to help your family find solutions to your family law issues in an informal, relaxed setting. Contact Andrew Cores Family Law Group at 630-871-1002 to schedule your free consultation.