Marriage is more than love and romance. The union is comprised of many facets, not the least of which is the financial component. One must remember that above all, marriage is a legal contract, and unless an agreement exists stating otherwise, “What is mine is yours" is the general rule that will be followed. Under Illinois law, any property or debt acquired during a marriage is considered marital property, meaning both parties have an equal claim to these assets in the case of divorce. Although this may seem trivial when everything is sunshine and rainbows during a marriage, it can be extremely detrimental should the union fail. To address these issues, a postnuptial agreement can protect your interests if your relationship encounters difficulty.

A Logical Look to the Future

A prenuptial agreement can document what should happen to assets and debts should the marriage result in divorce. Although the thought of the marriage failing before it even begins can be unromantic, logically, this is an ideal time for the discussion, especially given that approximately 50% of marriages result in divorce. When preparing to get married, you can civilly discuss the intimate details without the hostility associated with separation.

After “I Do,” It Is Not Too Late

For many Americans, a prenuptial agreement is either out of the question or regarded as unnecessary. However, as a marriage progresses, circumstances change that alter the family dynamic. In these cases, it is not too late to create a legal agreement to protect yourself. A postnuptial agreement is fundamentally identical to a prenup, except that it is created after the marriage vows. The contract can include any provisions the couple deems necessary, such as how assets will be divided or whether one spouse will pay spousal maintenance. Some spouses even choose to incorporate a clause regarding what should happen in the event of adultery, something the state does not include in divorce decisions.

Unfortunately, few things in life last forever, marriages included. Because a sizeable number of Illinois marriages end in divorce each year, savvy spouses have attempted to protect themselves and others through the use of prenuptial and postnuptial agreements. Spouses with significant assets going into a marriage may opt for a prenuptial agreement, which is an agreement regarding property division and alimony entered into before the marriage. By contrast, where one spouse obtains a significant amount of assets after the marriage has been solemnized, or where spouses wish to reduce areas of disagreement and contention in the event they do divorce, a postnuptial agreement may be in order.

But simply agreeing with your spouse as to what the two of you would like to happen if a divorce occurs does not mean a valid postnuptial agreement has been entered into. What are the steps then that Illinois couples must take in order to enter into a valid postnuptial agreement?

Requirement One: Full Disclosure - Generally the spouses must provide a full and fair disclosure to one another of their current assets and liabilities. This is to prevent one spouse from taking advantage of the other spouse by making the other spouse believe the deceitful spouse has few assets or little net worth. A postnuptial agreement that does not include full and fair disclosure may be set aside as unconscionable.