Is it too late for a prenup if I’m already married?
In Illinois, prenups become effective on the day that you and your betrothed are legally married. If you’re past that point, a prenuptial agreement is no longer a valid option. That does not mean it is too late for you and your spouse to protect yourselves and your respective property rights through mutual agreement, however.
While most people are familiar with the concept of prenuptial agreements, postnuptial agreements are a little bit more foreign. A “postnup” is a binding agreement that you and your spouse enter into after you are legally married. In almost every other way, a postnup is just like a prenup.
What do I need for a postnup?
To be a valid contract, a postnup must be in writing and signed by both parties to the marriage. It also must include some form of “consideration” from each party, which means that both spouses must promise to give something up in exchange for the benefits they are receiving by signing the postnup. Consideration can be a mutual release of property rights (that is, each party agrees to give up certain property rights that they would otherwise be entitled to), or something as simple as the promise to remain married. A valid postnup must also include definite and certain terms, meaning that the agreement must be specific enough for a reviewing court to be able to enforce it.
A postnup can deal with many of the same issues that a prenup would address, including which property is marital property to be split in the event of divorce, which property is separate property to be held separately in the event of a divorce, whether either party will receive spousal support (or “alimony”), and what to do with the marital residence. A postnup is also uniquely useful because it can designate certain specific property acquired after the marriage as separate property, whereas that property might otherwise be treated as marital property by a court during a divorce proceeding.
Will my postnup be enforced?
In Illinois, courts regard postnups favorably, and the default presumption is that they are valid. However, a postnup can still be struck down by a court during a divorce if it violates public policy or is unconscionable.
The most common way a postnup will violate public policy is if it takes away the court’s power to determine child custody issues in the best interests of any children. For example, a court will strike down a postnup that gives a third-party, like a religious arbiter, the sole power to determine which parent will have custody of a child if the couple pursues divorce.
A postnup will be considered unconscionable, and therefore unenforceable, if there is something improper during the formation of the contract, or if the resulting terms are overwhelmingly one-sided or harsh. For example, if there is fraud or duress that causes one of the parties to sign a postnup without fully agreeing to or understanding its terms, the postnup may be struck down by the court. Likewise, if a postnup deprives the spouse with a substantially lower earning capacity of any assets or spousal maintenance, it may also be struck down as unconscionable.
While postnups are fairly straightforward, they are contracts with significant, life-altering consequences. It is always a good idea to consult with an experienced attorney to either draft or review the contract for you. If you are looking for assistance with drafting a postnuptial agreement that meets your needs and protects your rights both now and in the future, contact our law office and schedule a consultation.