Should My Spouse and I Enter into a Postnuptial Agreement?

 Posted on September 15, 2015 in Prenuptial and Postnuptial Agreements

Unfortunately, few things in life last forever, marriages included. Because a sizeable number of Illinois marriages end in divorce each year, savvy spouses have attempted to protect themselves and others through the use of prenuptial and postnuptial agreements. Spouses with significant assets going into a marriage may opt for a prenuptial agreement, which is an agreement regarding property division and alimony entered into before the marriage. By contrast, where one spouse obtains a significant amount of assets after the marriage has been solemnized, or where spouses wish to reduce areas of disagreement and contention in the event they do divorce, a postnuptial agreement may be in order.

But simply agreeing with your spouse as to what the two of you would like to happen if a divorce occurs does not mean a valid postnuptial agreement has been entered into. What are the steps then that Illinois couples must take in order to enter into a valid postnuptial agreement?

Requirement One: Full Disclosure - Generally the spouses must provide a full and fair disclosure to one another of their current assets and liabilities. This is to prevent one spouse from taking advantage of the other spouse by making the other spouse believe the deceitful spouse has few assets or little net worth. A postnuptial agreement that does not include full and fair disclosure may be set aside as unconscionable.

Requirement Two: In Writing - A postnuptial agreement should be written down and signed by both parties. An "agreement" reached between the spouses that is not reduced to writing is not enforceable (unless, of course, both spouses remain committed to the agreement at the time of the divorce – which rarely happens). The agreement should be signed and notarized by both parties.

Requirement Three: Generally Fair - The provisions of the postnuptial agreement cannot be one-sided or obviously unfair. While parties are free to agree to terms that they choose concerning property division, alimony, and child custody, the terms cannot favor one party at the expense of the other. If one party is receiving substantially all of the assets and the other party gets nothing, the court may set aside part or all of the agreement in order to treat the parties fairly.

Requirement Four: No Disadvantaging Children - The parties’ postnuptial agreement cannot disadvantage any child of the parties. This typically means that the parties cannot agree that the child will not receive financial support. In other words, the parties cannot agree that one parent will assume custody of the parties’ child and the other parent will be relieved of any requirement to pay child support.

Contact a DuPage County Divorce Attorney for Help

While not required, an attorney’s assistance in preparing and executing a postnuptial agreement can ensure the legal formalities are complied with and increase the chances that the agreement will be enforced by the court in the event of a divorce. Contact the experienced DuPage County family attorneys at our firm today at 630-871-1002 for assistance.   Source: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2086&ChapterID=59