With wedding season upon us, what better time to review the differences between a prenuptial and postnuptial agreement – and some advantages of both. Neither one needs to suggest the demise of a marriage, as unromantic as it may seem to discuss your respective finances so openly. Realistic conversations about what divorce would mean for a couple might even strengthen the relationship.
The main difference between the two agreements is that one takes place before marriage, and the other after. So, if you generally think it’s a good idea but are too busy planning the wedding, a postmarital (a.k.a. postnuptial) agreement can just as easily be done after the honeymoon.
The Main Purpose of a Prenup
Prenuptial agreements in Illinois generally follow the same basic principles as in other states, but there are some distinct features that set us apart. The agreement essentially sets in place specific legal protections for both parties by stating how your money, belongings and debt would be divided up if the marriage ends. Common areas included in a prenup:
- Disclosure of assets and liabilities: Illinois law requires that both parties fully disclose their assets and liabilities, or debts.
- Spousal Support (Alimony): You can establish a potential spousal maintenance system, keeping in mind that state law allows it to be waived or modified under certain circumstances.
- Equitable distribution of assets: Marital assets get divided in a way that is deemed fair and equitable by the courts, as opposed to being split 50/50 in a divorce.
- Possibility for modification: One advantage of having a prenup in place is that it can be changed or even revoked after the fact if new information or circumstances warrant it.
Your significant other’s financial situation may become more transparent in the process, which can be a good thing for a couple that will be intermingling their money with one another’s.
Similarities Between Prenups & Postnups
Ideally, you want to ensure your rights are represented fairly and equitably, no matter which path you decide to take. Whether you are feeling optimistic before getting married or are going through a divorce, the benefit is that the agreements can help reduce confusion and potential tension between the two spouses. With a contract in place, there may be less chance of arguing over a point that was already spelled out in writing.
Prenups and postnups must both be signed by the two parties. However, they are only enforceable if both parties entered into them voluntarily and fully disclosed their assets as well as their debts. The court may decide not to enforce a provision in the agreement if they deem it unfair to one of the spouses.
How Couples Benefit from a Postnup
Postnuptial agreements are becoming more common in Illinois. They are often executed if it looks like the marriage may not survive. Why bother, if you know you are splitting up? Because the document allows you to address financial matters that will be pertinent after your divorce. More important, they address what factors could potentially alter the specifics of the asset division portion, reducing your urge to haggle if things change, which they often do.
Postmarital Agreements Can Happen at Any Time During a Marriage
When you enter into a marriage you don’t necessarily know how long it will last, how much money each person will make, and what big decisions you may make together that involve money. It is such unknowns that make these documents a smart idea early on. In particular, it spells out how the earnings of each party will be protected in the event of a split.
Therefore, changes in financial circumstances during the marriage – such as a shared family business you weren’t anticipating – might signal a postnup is in the best interest of the couple.
Discuss Prenup & Postnup Decisions with a Family Lawyer
Both agreements can be highly complicated, and they are not only about money. What goes into them depends entirely on the preference of the individuals. If you plan to have children, your prenup or postnup can outline:
- Details regarding child custody;
- Who may be responsible for child support; and
- What kind of visitation rights each parent can expect in the event of a divorce.
In Illinois and elsewhere, spousal support is not intended to leave the person sending the checks so impoverished that they are struggling to survive. If you already have an agreement in place but want to dispute something in it, you and your lawyer can discuss what aspects of it may not be enforceable and try to find a better solution.
Call the Law Office of David A. King, P.C. for assistance with your prenup or postnup today.
