When a couple decides to get married, they usually agree to share what they own. If the marriage were to end in divorce, the marital estate is divided under the equitable distribution doctrine. Unlike community property states, which divide the couple’s assets in a 50/50 division, Illinois law says the couple’s assets need to be divided equitably based on certain factors. Some of these factors include:
- How long the couple was married
- Each spouse’s contribution to the marital estate
- The value of the assets
- What each spouse’s financial circumstances will be after the divorce
- Tax implications
- Whether spousal support will be paid
One factor that usually supersedes all other factors is whether the couple had a valid prenuptial agreement. A prenuptial agreement is a legal contract entered into by the couple prior to the marriage which stipulates how assets and property will be divided in the event the couple divorces. The agreement can also address any outstanding debt the couple has and spousal support/maintenance.
Although it is recommended that every couple draw up a prenuptial agreement before the wedding, many couples choose not to. The good news for those couples is that Illinois law also recognizes postnuptial agreements.
Postnuptial agreements address the same terms and/or issues that prenuptial agreements do. The only difference is that the agreement is entered into at some point after the couple has married.
Reasons Why Married Couples Choose to Sign a Postnuptial Agreement
In certain marital situations, signing a postnuptial agreement is highly recommended. Typically, postnuptial agreements are established because of the following:
- One of the spouses has significant assets and the couple did not enter into a prenuptial agreement before they married.
- One or both of the spouses have children from previous relationships or marriages. Having a postnuptial agreement can ensure that each spouse’s children receive the inheritance according to their parents’ wishes.
- One spouse has taken on insurmountable debt or has previously made irresponsible financial decisions.
- One spouse has a profitable and established business
- One spouse has inherited a substantial amount of money or property
How to Establish a Valid Postnuptial
To considered valid, enforceable, and legal under Illinois law, a postnuptial agreement must meet the following criteria:
- It must be written. An oral postnuptial agreement will not be considered valid.
- It must be signed by both spouses. Additionally, it should be notarized by a third party.
- It must be voluntary. One spouse cannot threaten, deceive, coerce, or physically force the other to sign the postnuptial agreement. If any of the following have occurred during the making and signing of the postnuptial agreement, the document is not valid.
- It must be fair. A postnuptial agreement cannot favor one spouse over the other.
- It must include full disclosure regarding property, assets, income, debt, and any other issue the couple has added.
Contact an Elmhurst, Illinois Postnuptial Attorney Today
If you are married and have decided that you and your spouse should draw up a postnuptial agreement, contact a skilled DuPage County, Illinois family law attorney at Weiss-Kunz & Oliver, LLC. Contact us at 312-605-4041.