Postnuptial Agreements 101
Most people have heard of prenuptial agreements—legal documents that a couple draws up before the wedding regarding division of assets in the case of divorce. What many people do not know is that there are also postnuptial agreements. These are similar to prenuptial agreements except they are drafted and signed after the couple is married. Postnuptial agreements are governed by the Illinois Marriage and Dissolution of Marriage Act.
Why Would I Want a Postnuptial Agreement?
Couples have several different reasons for deciding to enter into a postnup. Some couples decide to draft a post-nup when they are going through a rocky time in their marriage and want to figure out property division beforehand to get a sense of what divorce might look like. Other couples may agree that a postnup is the way to go if one of them wants to try a new business venture. Finally, some may regret not signing a prenup and therefore choose a postnup as plan B. Whatever the reason, it is important to make sure you go into the postnup with your eyes open so that you understand the legal consequences of signing one.
Will it be Enforceable by the Court?
On one hand courts like postnups and prenups because these agreements make their jobs easier. If a couple has come to an agreement about property division, then the judge does not have to make those decisions. However, the Illinois Marriage and Dissolution of Marriage Act states that agreements that are “unconscionable” will not be upheld. Unconscionable is a term that is constantly being defined and refined by case law, but generally it will look at the economic situations of the parties and uphold any agreement that is not extremely unfair to one party.
Postnuptial agreements can include agreements for division of property. However, the Illinois Marriage and Dissolution of Marriage Act does not allow parties to have the final word about child custody or child support for minor children. The court has its own rules about child support and custody and looks to the best interests of the child, not necessarily the agreement that a couple made years before.
Postnups also cannot require anyone to do anything illegal or against public policy.
What Should I Look Out For?
If one part of the couple has a lawyer, then it is extremely important that the other member of the couple be represented by a lawyer as well. It is a conflict of interest for one attorney to represent both sides in a postnup negotiation. You do not have to sign anything that you are not comfortable with, but once you sign the agreement you are legally bound by it, aside from the exceptions above.
Let Us Assist You Today
Postnuptial agreements are important legal documents that require knowledgeable attorneys. Our experienced DuPage County family law attorneys at Davi Law Group, LLC can assist you with planning and drafting pre and postnuptial agreements.