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How Do Postnuptial Agreements Work in Illinois?

Unlike a prenuptial agreement which happens before a couple gets married, postnuptial agreements are made during an existing marriage. A postnuptial serves much the same purpose as a prenuptial: it lays out specific terms of property division in the case of a divorce.

Is a Postnup Always Enforced During an Illinois Divorce?

In Illinois, a pre or postnuptial agreement that is made willingly and is generally fair and equitable will be enforced. However, according to the law if a postnuptial agreement is found to be “unconscionable”, it will be thrown out.[1]

Here are a few example scenarios where a postnuptial agreement might not be enforced:

  • One spouse coerces the other into signing a postnuptial agreement against their will.
  • One spouse misrepresented themselves or their assets when signing the agreement.
  • The signed agreement is so completely unfair it can’t be enforced in good conscience. In this case, the court may uphold parts of the contract and change others.

In Illinois, existing agreements, including postnuptial agreements, are used as the basis for property division as long as they’re fair. That means that a judge has the power to disregard or change parts of the postnuptial agreement if it’s deemed necessary.

Is a Postnuptial Agreement a Good Idea?

Prior to the passage of the Uniform Premarital Agreement Act,[2] postnuptial agreements were fairly rare. This is because state laws varied so much that if you moved, the contract would likely be unenforceable.

Thanks to the law, postnuptial and prenuptial agreements are much more easily enforced across state lines. Does that mean you should get one? That’s harder to answer.

There are many reasons a couple might choose to enter a postnuptial agreement, including:

  • To protect significant premarital wealth
  • To isolate a business venture taken by just one spouse
  • To protect a spouse from debt
  • Because they wanted a prenup but waited too long

Of course, this is by no means a complete list of every reason why couples choose to go for a postnup. If this is something you are considering, however, always have separate lawyers. Even when couples agree 100% on every aspect of a postnuptial agreement, it’s worth having an extra set of eyes to make sure nothing is overlooked.

Also, be wary if your spouse is pressuring you into signing a postnuptial agreement against your will, or if only they have a lawyer present. A postnuptial agreement should be something you mutually agree on.

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Frequently Asked Questions

What do postnups cover?

Like a prenuptial agreement, a postnuptial agreement defines how assets and property are handled in the event of a divorce. The only difference is that prenuptial agreement is entered into before the marriage, while a postnuptial agreement happens during a marriage.
Illinois is an equitable distribution state. This means when couples divorce, their property is not split down the middle but divided fairly. Some individuals, however, want to have more specific control over how specific assets or property are handled in the event of a divorce.
A postnuptial agreement can cover property and assets, it cannot be used to decide child custody, support, or placement. These can only be decided as part of a divorce.

Can postnups be used to allocate debt in the event of a divorce?

Postnuptial agreements can be used to isolate debt. Normally, a debt incurred by one person before they’re married isn’t considered marital. But if it’s paid off with marital funds, it may be considered a joint debt over time.
To insulate the other spouse from debt, a postnuptial agreement could define what part of the debt should be considered non-marital.
However, in Illinois, the court is not obligated to follow a postnuptial agreement to the letter. They will take it under advisement but may modify it to ensure it follows the rules of equitable distribution.

Should I have a Marital Property Agreement?

It’s difficult to say if a postnuptial agreement is right for every couple. For some, it provides some security, knowing that there’s a basis for property division in case of a divorce. Also, if a couple is considering a divorce, it could allow them to define how property is divided in advance. Since property division is one of the more contested and complicated aspects of a divorce, this may save money.
Ultimately, a postnuptial agreement makes sense for some people and not for others. If you do enter into a postnuptial agreement you should always give your full consent and always have your own lawyer present.

How does a Marital Property Agreement work if I’m already married?

A postnuptial agreement simply defines how certain property should be classed (marital or non-marital) and how it should be divided in the case of a divorce. The only difference between a postnuptial and prenuptial agreement is the timing.
A postnuptial agreement can lay the groundwork for how property division would be approached in a divorce. This can drastically simplify the process, and given a judge sees it as equitable, they are likely to follow it closely.

If I get divorced, what happens if I did not have a Marital Property Agreement?

If you do not have a postnuptial agreement, then property and assets will be divided according to Illinois equitable distribution laws. Most times this is not a 50/50 split, but instead is done with the goal of being fair to both parties.
Illinois divides properties based on a number of different factors including the income of both parties, the length of the marriage, health, if there are kids in the marriage and who spends the most time with them, and many other factors.
A postnuptial agreement will not change how the court approaches property division. They will still divide property and assets with the goal of making it fair and equitable. What it does do, however, is provide the court with a framework that might simplify the process.
As long as a postnuptial agreement is seen to be fair, a judge will often default to it.

Is a postnuptial agreement the last word in a divorce?

A postnuptial agreement is only enforced if it seems fair and is not “unconscionable”. Further, a postnuptial agreement is only one of the factors considered in property division, so it is not the final word.
If a postnuptial agreement is outdated, was made in ill faith, or is not seen as fair, it may be modified or ignored.

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