Postnuptial agreements are relatively new in the legal field, but they are just as powerful as pre-nuptial agreements. Like prenuptial agreements, post-nuptials, post-marital agreements or postnups, as they are also called, outline the ownership of assets in the event of a divorce, among other functions. They also spare spouses costly divorce settlements and bring a sense of calm in otherwise trying times.

Elements of a Postnuptial Agreement 

Illinois law dictates that a couple’s assets must be divided equitably based on certain factors like;

  • How long was the couple married
  • The value of the assets
  • Tax implications
  • Whether spousal support will be paid
  • The financial circumstances of each spouse after the divorce

Ideally, couples should draw up a pre-nuptial agreement and have it signed before the wedding. But many couples choose not to. Because Illinois law recognizes postnuptial agreements, you can address the same issues in a post-marital agreement. But for the post-nuptial to be enforceable, it must have the following elements:

  1. It should be in writing. Oral contracts are not enforceable S
  2. Entering into the agreement must be voluntary by both parties
  3. At the time of the signing, there must be complete and transparent disclosure of relevant information
  4. The terms must be fair and reasonable. The agreement shouldn’t be one-sided or unfair.
  5. Both parties must sign the contract.

The Role of Postnuptial Agreements 

Post-nuptials can serve various purposes and be customized to the couple’s needs. The main roles of post-nuptials are:

Protecting inheritance 

Illinois is an equitable property state, meaning courts must consider what is fair when splitting property. When one spouse expects a substantial inheritance, the couple can work out how the inheritance should be shared through a postnuptial.

A postnuptial agreement overrides equal claim on inherited property to ensure the heir continues to own their inheritance. Even in equitable property states like Illinois, the increase in the value of the estate may be considered marital property, which is why a postnuptial comes in handy.

Providing for stay-at-home spouses 

A legally binding document like a postnuptial can guarantee provision for a spouse whose earnings have dwindled because of parenting or who is a stay-at-home spouse. A postnuptial dictating the partition of assets eases the spouse’s financial constraints and makes it possible to provide for children from previous relationships.

Dividing interest in a business 

During divorce proceedings, bank accounts and retirement funds are easy to value. The same can’t be said for business, especially if both spouses are principals.

The cost and time of accurately valuing the business or company amid a divorce can be straining. Increasingly couples are using post-nuptials to categorize the business as separate property that stays with the titled spouse. In return, the non-titled spouse may get a bigger share of non-business assets to make up for it.

Rebuilding a relationship 

A postnuptial can be a way to keep a struggling marriage solvent. Agreeing on post-divorce terms favorable to both spouses can keep the relationship intact as it shows either spouse’s intent on keeping the marriage functional.

Repaying gifts 

Gifts like receiving money from a spouse’s parents for a down payment on the house become incredibly awkward during a divorce settlement. With a postnuptial agreement, the in-laws are guaranteed they will be reimbursed if the relationship doesn’t last. The post-nuptial can create a framework to have the in-laws repaid in assets or cash.

What is Included in a Postnuptial?  

Post-nuptials are different and are tailored for each couple. They can include as much or as little information as the couple prefers. Typically, the postnuptial includes each spouse’s decisions regarding:

  • Division of property and other assets if the marriage ends
  • Whether one spouse will pay spousal support and how long such support payments remain in place
  • Division of marital debts like mortgage loans, credit card debt and other loans
  • Passing of assets if a spouse dies during the marriage

What is Excluded in a Postnuptial Agreement? 

Although post-nuptials can be broad and cover most financial aspects of the couple, matters related to children, like child custody and child support, are not included in post-nuptial agreements. These matters are addressed separately in the event of a divorce.

Contact a postnuptial Attorney in Illinois Today

A postnuptial agreement alleviates the financial and emotional stress of losing a spouse or divorce proceedings. Seeking the assistance of an attorney to help you draw up an enforceable agreement within the legal framework of Illinois is crucial. At Johnston Tomei Lenczycki & Goldberg, LLC, we specialize in all matters of family law serving Lake County, McHenry County and Cook County. Get in touch with us for a complimentary consultation and your postnuptial agreement needs.

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