Prenuptial and Postnuptial Agreements
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Prenuptial and Postnuptial Agreements
A prenuptial agreement is a contract entered into before marriage that determines how property, debts, and support will be handled if the marriage ends. A postnuptial agreement does the same thing after the marriage has already taken place. In Illinois, premarital agreements are governed by the Illinois Uniform Premarital Agreement Act, which requires that the agreement be in writing and signed by both parties. No separate consideration is required beyond the marriage itself.
These agreements are not only for the wealthy. They are commonly used to protect a business or professional practice, to preserve premarital property or an expected inheritance, to protect children from a prior marriage, to define how a jointly purchased home will be treated, to allocate responsibility for debts that one party brings into the marriage, and simply to replace the uncertainty of a contested property division with terms the parties chose themselves.
There are limits on what an agreement can do. Parties may contract about property rights, the disposition of assets on separation or death, and spousal maintenance. They cannot contract away a child’s right to support, and any provision purporting to adversely affect child support is unenforceable. Provisions concerning the allocation of parental responsibilities and parenting time are likewise not binding on a court, which must decide those questions according to the children’s best interests at the time.
An agreement is only worth what it will withstand later. Illinois will not enforce a premarital agreement where the party against whom enforcement is sought did not sign voluntarily, or where the agreement was unconscionable when made and that party was not given fair and reasonable disclosure of the other’s property and obligations, did not waive disclosure in writing, and could not reasonably have had adequate knowledge of it. In practice this means full financial disclosure, adequate time before the wedding rather than a signature days beforehand, and independent counsel for each party. Attorney Marinov drafts and reviews marital agreements and litigates their enforceability. Contact our office to discuss what an agreement can and cannot accomplish in your situation.
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Common Questions
What is the difference between a prenuptial and a postnuptial agreement?
A prenuptial agreement is signed before the marriage; a postnuptial agreement is signed after the parties are already married. Both address how property, debts, and support will be handled if the marriage ends.
Do I need to be wealthy to need one?
No. These agreements are commonly used to protect a small business, premarital property, an expected inheritance, or children from a prior marriage, and to allocate responsibility for existing debts.
What can a prenuptial agreement cover?
Property rights, the classification and division of assets and debts, the disposition of property on separation or death, and spousal maintenance, among other financial matters.
What can it not cover?
It cannot adversely affect a child’s right to support. Provisions purporting to fix parental responsibilities or parenting time are also not binding, because a court must decide those issues based on the children’s best interests.
Can we waive maintenance in advance?
Illinois permits parties to address maintenance by agreement, including eliminating or modifying it. A court may nonetheless decline to enforce such a provision where doing so would cause undue hardship in circumstances not reasonably foreseeable when the agreement was signed.
What makes an agreement unenforceable?
Principally, that it was not signed voluntarily, or that it was unconscionable when made and the party challenging it was not given fair and reasonable disclosure of the other party’s finances and did not waive that disclosure in writing.
Does each of us need our own lawyer?
It is not strictly required, but independent representation for both parties is one of the strongest protections against a later claim that the agreement was not entered into voluntarily. One attorney cannot represent both sides.
How far before the wedding should we sign?
As far in advance as practical. An agreement presented days before the ceremony invites an argument that it was signed under pressure. Beginning several months out is far safer.
Do we have to disclose all of our finances?
Fair and reasonable disclosure of property and obligations is central to enforceability. Disclosure may be waived in writing, but doing so weakens the agreement rather than simplifying it.
Does the agreement need to be notarized?
Illinois requires that a premarital agreement be in writing and signed by both parties. Notarization is commonly used as evidence of proper execution even where it is not strictly required.
Can we change or cancel the agreement later?
Yes. Parties may amend or revoke the agreement after marriage by a written agreement signed by both of them.
What if we married abroad or one of us is not a U.S. citizen?
Agreements involving foreign assets, foreign marriages, or a spouse whose status depends on the marriage require additional care. Because our office also practices immigration law, we are able to address both sides of that situation.
What documents should I bring to my first consultation?
Any court papers you have been served with or have filed, recent pay stubs and tax returns for both spouses if you have them, a list of significant assets and debts, and any existing court orders or agreements.
