So, you didn't take our advice. Bad move. Though you neglected to put a prenuptial agreement in place prior to your grand and glorious wedding, there's still a glimmer of hope for financial security in the form of a postnuptial agreement.
A postnuptial agreement is simply a prenuptial agreement signed after the pomp and circumstance of your wedding. Much like a prenup, it defines each party's separate assets and provides clarification and security in the event of a divorce. Note that the longer you have been married, the more entangled your assets become. Getting divorced after a year is much easier than getting divorced after 10 years and three kids. A postnup clears up the confusion that comes with 10 years of asset commingling.
Besides preparing for the worst-case scenario of divorce, a postnuptial agreement can also fence off separate property for the sake of estate planning for children from a previous marriage. Another use of a postnuptial agreement is to define separate assets before one party embarks on a risky business venture. Should the business fail, the separate property of the businesswoman's spouse is more difficult to seize.
Postnups, while not as popular with couples or well-received by courts, have recently been reaffirmed by Illinois appellate courts. At its core, a postnuptial agreement is simply a contract and will be analyzed by a court as such.
The agreement cannot be one-sided, such as an agreement to give everything to the husband. There has to be a mutual exchange of property or promises, such as a wife's agreement to return to the marriage in exchange for the right to own the house as separate property.
Also, while prenuptial agreements are typically enforced as long as there was proper disclosure of assets and the other statutory requirements were met, postnuptial agreements that are clearly one-sided or unconscionable will not be enforced, even if there is full disclosure and representation by counsel.
A postnuptial agreement isn't a cure-all for marital problems or financial planning. It's not a substitute for a prenuptial agreement. It is, however, a useful tool that you should consider if your assets are presently unprotected.
- Find a Chicago Family Law Attorney (FindLaw)
- The Real Lesson From Camille and Kelsey Grammer's Divorce: Prenup (FindLaw's Chicago Family Law Blog)
- Making Your Postnuptial Agreement Enforceable: Former CEO's High Dollar Divorce Illustrates the Stakes (FindLaw's Common Law)
- Using a Prenuptial or Postnuptial Agreement (FindLaw's Learn About the Law)