Couples can agree, before (prenuptial agreement) or after (postnuptial agreement) marriage, on how assets will be divided upon death or divorce. Postnuptial agreements essentially function the same as premarital agreements, and parties can contract almost anything in these agreements, so long as it meets the requirements of any other contract. In re Estate of Feinberg, 235 Ill.2d 256, 266 (2009).
Postnuptial agreements have gained popularity as a tool for married couples to define the terms of their financial relationship. Crafting an effective postnuptial agreement requires careful consideration and clear communication between the parties.
To be held as a valid contract/ agreement in Illinois and under the Uniform Premarital and Marital Agreements Act, Postnuptial agreements should adhere to the following:
1. Provide full disclosure of assets and liabilities:
The foundation of any postnuptial agreement is complete financial transparency. Both partners must openly disclose all their assets, liabilities and income. Hiding financial information can not only undermine the agreement’s validity but also damage trust in the relationship.
2.Be Clear and Specific:
An effective postnuptial agreement leaves no room for ambiguity. Be clear and specific in outlining the terms, assets and responsibilities the agreement covers. Avoid vague language, as it may lead to misunderstandings and disputes down the road.
3. Be Fair and Equitable:
The agreement should be fair and equitable to both parties. It should not favor one spouse over the other. Courts often scrutinize postnuptial agreements for fairness, so ensuring an even-handed approach is essential with lawyers guiding the process.
4. Have Mutual Consent:
A postnuptial agreement is only effective when both partners willingly consent to it. No one should feel coerced or pressured into signing. Both spouses must understand the agreement’s terms and voluntarily agree to them with attorneys and witnesses present at the signing.
An effective postnuptial agreement should not be a source of tension in the relationship. It should provide peace of mind and a secure financial framework for the marriage, ensuring the protection of both parties’ interests. Our Mediation and Collaborative training make this firm well suited to draft and negotiate postnuptial agreements. If such an agreement is something you want to explore in your marriage, we are here to help.