Anderson & Boback Logo
reasons for post-nuptial agreements

Postnuptial Agreements – What You Need to Know

Published
Categorized as Post-Nuptial Agreement

A postnuptial agreement is a legal document that explains and designates how property will be divided in the event of a divorce.  It is very similar to a premarital (or pre-nuptial) agreement, except a premarital agreement is signed prior to the marriage and a postnuptial agreement is signed after the marriage has already occurred.  

While a post-nuptial agreement is enforceable if properly executed, there is often a “dark cloud” over post-nuptial agreements. whereas they are more easily overturned than a premarital agreement, especially if there are assets that have been comingled already during the marriage or received during the marriage.  Any income earned during a couple’s marriage and any property or money accumulated during a marriage is presumed to be marital property unless otherwise allocated (such as in a premarital agreement).  Once the money or property is considered marital in nature, someone agreeing to waive their right to something that is legally marital is a more difficult argument to make, than say, property that the spouse had prior to the marriage occurring.  In the latter scenario, the property or money was always non-marital and the agreement keeps it non-marital. 

In a postnuptial agreement, some parties take marital property and try to label it as non-marital property.  The fact that a postnuptial agreement may be more difficult to enforce than a premarital agreement does not necessarily mean that they are bad or unenforceable, it simply means that extra care has to be taken to ensure they are extremely clear, as well as drafted and executed meticulously to ensure that every precaution has been taken to make them enforceable.

Common Scenarios for Postnuptial Agreements

Some scenarios where a postnuptial agreement is common or necessary are as follows:

  • Parties who wanted a premarital agreement but ran out of time or put it off prior to their wedding;
  • Parties who are entering into a second, third, or fourth marriage (and so on); (especially when they have minor children from a previous marriage)
  • Parties who have minor children from a prior relationship;
  • Parties who own a business;
  • Parties who come into a large inheritance or non-marital gift from family and want to ensure it is protected;
  • Parties who wish to stay in their marriage, but only will do so if they are certain that in the event they divorce, they will be aware of what is “theirs”. (More on this public policy argument below).

Save Your Marriage with a Postnuptial Agreement?

Postnuptial agreements have to be for the purpose of saving or preserving the marriage, which may be contrary to why people believe they are needed.  The purpose of a post-nuptial agreement is not to contemplate a divorce.  In fact, the public policy argument behind why post-nuptial agreements exist is for the purpose of trying to save marriages. 

For example, if someone is in a marriage and they are not happy and are thinking divorce is a possibility, they may be more inclined to try and get out of the marriage quickly.  This might be because the longer they are married, the larger a spousal support obligation they’d have to their current spouse.  Or, the longer they are married, the larger a share of the property could be awarded to a subsequent spouse. 

Some of the laws that govern parties in a divorce case, especially when there is a disproportionate share of earned income, can be looked at as “favoring” the lesser-earning spouse.  However, if the parties can agree to a postnuptial agreement, whereas they determine exactly what would be paid out in the event of a divorce, it gives both parties reasonable reassurance of what would happen in the event they choose to pursue one. This takes the “unknown” out of the equation, and the thought is that people would be less likely to file for divorce and to work to save their marriage if they are no longer concerned about what the financial picture and financial security would look like in the event of a divorce. 

Post-nuptial agreements are arguably designed to save marriages, not to contemplate divorce, nor to break up marriages.  When looking at them through this lens, it actually can be a very useful tool in trying to salvage a marriage and avoid divorce.

Consult an Experienced Chicago Postnuptial Agreement Attorney

Anderson & Boback
If you believe your marriage may benefit from a postnuptial agreement, the family law attorneys at Anderson & Boback are here to help.  Contact us today to schedule a confidential consultation with our top Chicago family law attorneys about postnuptial agreements.

Was this information helpful?

You May Also Like

When going through a divorce it's not uncommon to think "I never want to get married again!" But later, you may fall in love again and be ready to venture into marriage again. If you are planning to remarry, you…

While doing an initial consultation with an individual looking to get divorced, I have found it is common to get questions about whether it is possible for a divorcing couple to work together with an attorney to do a collaborative…

No one likes to pay spousal maintenance (formally called "alimony" or referred to as spousal support). When you are employed and your ex refuses to work, there is a greater reluctance to want to pay maintenance. In Chicago divorces, there…

Finding the best child custody lawyer in Chicago may seem like a daunting and intimidating process if you have never been involved in a legal dispute. This is especially true when it comes to a custody case involving your children…

Parenting disputes, and accusations of being a bad or unfit parent, are extremely common in the world of divorce, juvenile, and family law. Many parents enter the courtroom with a laundry list of accusations of poor parenting against the other…

Unfortunately, there are many negative connotations when it comes to the word “divorce.” Maybe you have personally went through a divorce in the past or maybe you know someone who has. When people think of divorce, it is not uncommon…

Anderson & Boback small logo

Download our Divorce Planning Guide today!

Get the information you need to prepare for divorce with our free resource Guide to Planning for Your Divorce.

What our clients are saying

Why Choose
ANDERSON & BOBACK?

Schedule a Discreet Consultation Today!

    Firm Overview
    ANDERSON & BOBACK?

    Anderson & Boback is a highly-respected, experienced Chicago family law firm, skilled in negotiation and litigation. When divorce and other family law issues make your life chaotic and uncertain, you want your case resolved as quickly and fairly as possible. Call Now 312-715-0870