Advantages and Disadvantages of an Illinois Post-Nuptial Agreement
Posted on August 12, 2021 in Prenuptial and Postnuptial Agreements
In the state of Illinois, in the event of a divorce, the equitable distribution law divides the assets fairly, not equally. However, when individuals desire to manage specific assets or property in a particular manner, they may choose to pursue one of the two available nuptial agreements. In the event of a divorce, both pre-and post-nuptial agreements establish how to properly handle assets and property. While pre-nuptial agreements are formed prior to marriage, post-nuptial agreements are initiated during the marriage. If having such direct control over your assets provides you peace of mind, you may want to correspond with a family law attorney to better understand your options.
When Can Post-Nuptial Agreements Be Advantageous?
If the individuals are already married, it is too late for them to form a pre-nuptial agreement. If they still wish to seek this type of asset control during the marriage, they would enter into a post-nuptial agreement. Post-nuptial agreements can be valuable and provide benefits to the couple whether they face divorce or stay together. Oftentimes, the couple may have originally wanted a pre-nuptial agreement but waited too long to make this feasible.
Some examples of how a post-nuptial agreement could benefit a married couple include:
- To protect a spouse from debt
- To isolate a business venture taken by just one spouse
- To determine who will receive ownership of marital property in the event of divorce
Post-nuptial agreements can be advantageous when dealing with concerns such as dividing debts and providing spousal maintenance. However, prenuptial agreements can not determine child support or child custody in the event of divorce.
When Can a Post-Nuptial Agreement Be Considered Unenforceable?
Post-nuptial agreements should be a joint collaboration between the spouses that puts neither at a disadvantage if they get divorced, or one spouse dies. If the court finds the post-nuptial agreement unenforceable, this can create significant challenges for one or both parties after divorce or death.
A court may deem the agreement void in the following situations:
- One of the parties misrepresented their assets or themselves when signing
- One of the parties coerced the other party into signing the agreement against their will
- The agreement is not fair and cannot be enforced in good conscience
There are several factors that play a role in an agreement being considered unfair. To maintain the validity of a postmarital agreement, it is extremely important for both parties to adhere to Illinois state law. Monetary support is another substantial factor in ensuring the validity of an agreement. The monetary conditions laid out in the postmarital agreement cannot put one of the parties at a distinct disadvantage. Additionally, the post-nuptial agreement cannot designate sole custody to one party if it is unreasonable.
Contact Our Geneva, IL Family Law Attorney Today
For couples considering a postmarital agreement, it is important to note that a valid agreement requires that each party’s assets and liabilities be fully disclosed in order for both individuals to make informed decisions. A post-nuptial agreement should be a mutually agreed-upon matter in which neither party feels pressured into signing. Additionally, it is highly recommended that each spouse seeks a separate attorney even if they completely agree on every detail in the agreement.
Our Kane County family law attorneys have a thorough understanding of the benefits and complications of both premarital and postmarital agreements. To effectively prepare for all contingencies included in marriage and divorce, contact The Law Offices of Douglas B. Warlick & Associates by calling 630-232-9700.
Sources:
https://www.ilga.gov/legislation/ilcs/documents/075000050k503.htm
https://www.isba.org/barnews/2017/11/15/case-postnups
