Entering into marriage is typically considered a lifelong commitment. However, not all couples stay together “‘til death do us part.” Statistics show that between 40 and 50 percent of all U.S. marriages end in divorce. That is why some partners decide to do a civil union instead of getting married. In either situation, there are two legally binding options to protect their interests. A prenuptial agreement is a legal document that specifies ahead of time how certain marital issues will be resolved in case the couple decides to part ways. A postnuptial agreement can address the same issues, but it is created after the wedding takes place. For those who may have not preplanned, a postnup can give them peace of mind in case of a breakup.  

Reasons for Creating a Postnup

There may be various reasons why a couple wishes to make a postnuptial agreement. They may want to document their wishes so they are known in case something happens to either of them. Three major factors that could lead to the creation of a postnup may be because a couple:

• Did not have time before the wedding to create a prenuptial agreement
• Are estranged but willing to work on the marriage
• Want to change/amend an existing prenuptial agreement

Items You Can Include in a Postnup

Postnuptial agreements are governed by the Illinois Marriage and Dissolution of Marriage Act in Illinois. Pre- and postnuptial agreements aim to preserve existing marriages by eliminating potential disputes, but they also protect each spouse’s best interest in the event of a divorce or separation. A few of the main topics that are covered in a postnuptial agreement include but are not limited to:

Although they are becoming more popular, only 5-10 percent of U.S. couples who marry draft prenuptial agreements. Once considered to be only for the wealthy, a prenuptial or postnuptial agreement can save a couple not only time and money but also mental anguish from disputes over property or asset division if they choose to divorce later. These legal documents let couples decide how they would like their marital property to be divided, as well as other considerations. However, there may be situations where a prenuptial or postnuptial agreement may be deemed invalid and therefore unenforceable. If you are considering working with your partner to plan ahead, it is best to learn what to include in these types of agreements and what would make them null and void. 

Premarital Considerations

A prenuptial agreement, or “prenup” is a legal document that an engaged couple can create to determine how they will address property, assets, debts, and other financial issues throughout their marriage and if they decide to divorce at any time. With this approach, property can be divided in the way the spouses wish. For example, they could choose a 60/40 or 70/30 percentage split.
As many other states did, Illinois adopted the Uniform Premarital Agreement Act (UPAA), which contains rules that dictate how courts decide whether a prenuptial agreement is enforceable. All prenuptial agreements must be put in writing and signed by both spouses for it to be enforceable. They do not need a witness to sign, and it does not have to be recorded with the court’s clerk. However, it is important to know that a court is more inclined to enforce the prenup if it can be proven that each spouse had prior knowledge of each other’s finances before signing it.

Postnuptial Factors

In some cases, a couple may not have considered a prenuptial agreement or did not have time to draft one if they had a short courtship before tying the knot. In these cases, a postnuptial agreement (postnup) may be an option. A postnup is a legal contract between spouses that defines what happens if the marriage ultimately ends. It can also be beneficial for those who are married and plan to stay together even after experiencing problems in their relationship, such as infidelity. 

Most couples do not enter into marriage thinking they are going to get a divorce. However, many married people do decide to split up for various reasons. Even if divorce seems unlikely, it is a good idea to make plans for how certain issues will be addressed if a marriage ever ends. A postnuptial agreement is a written agreement drafted between two married spouses or two people who have entered a civil union. This type of agreement functions as a legal contract, and it can outline what will happen to the couple's assets if they separate or get divorced. It may also decide whether either party will receive spousal maintenance (alimony), and it can address what will happen with marital property after the death of one spouse. A postnuptial agreement is similar to a prenuptial agreement (or “prenup”), except it is created after a couple gets married rather than before they tie the knot.

Pros and Cons of Postnuptial Agreements

One of the main reasons a couple creates a postnuptial agreement is to ensure that assets such as property, finances, and even debts are distributed equally after a divorce. Making decisions about ownership of property ahead of time can help avoid conflict during the divorce process. A postnuptial document can also be helpful if children are involved, as it may be used to ensure that they have financial security for their future. For example, if your children want to attend college or a trade school, a set amount of marital assets can be set aside to go toward their tuition, room, and board.   

While a postnuptial agreement can be beneficial, it can also present problems, especially if a spouse signs the agreement without fully understanding the terms. In some cases, a person may even sign an agreement against their will or after being coerced into doing so by their spouse. This can complicate the divorce process later if a spouse tries to contest the agreement.