What is a Postnuptial Agreement?

Most people have heard of prenuptial agreements, agreements entered into prior to marriage that govern in the event of divorce; however, less commonly mentioned are postnuptial agreements. Postnuptial agreements are entered into after the marriage occurs. Legally, the only difference between a postnuptial and prenuptial agreement is the timing. If parties are hesitant to discuss a prenuptial agreement prior to their wedding day or circumstances change throughout the marriage, one example being an unexpected inheritance, that would make such an agreement more enticing, a postnuptial agreement is an available option to the parties.

Postnuptial agreements can address all of the same aspects as a prenuptial agreement such as what will be considered separate property upon divorce, spousal support, or inheritance of non-marital children. 750 ILCS 5/503(a)(4) provides that for the purposes of the division of the marital estate, property that is included in a valid postnuptial agreement will be excluded and be considered non-marital property. This provision allows for parties to enter into a postnuptial agreement to contract around what would normally be considered marital property and allow it to be divisible as the parties deem fit, rather than by a judge’s determination as to what is an equitable division.

A key difference between a prenuptial agreement and a postnuptial agreement is that a postnuptial agreement requires consideration to be enforceable. An act or promise that benefits one party or is a detriment to the other party is “consideration” sufficient to support a contract. Case law has assisted in determining what will be adequate consideration to hold a postnuptial agreement enforceable. A wife's promise not to make any claims against property of husband was adequate consideration. Brosseau v. Brosseau, 176 Ill.App.3d 450 (3d. 1988). On the other hand, in an unpublished case, from DuPage County in 2014, Marriage of Auriemma, the dismissal of a 2003 divorce petition could not serve as consideration for the 2004 postnuptial agreement because the dismissal of the action occurred before the parties entered into the 2004 agreement. This is an important distinction between the two agreements to keep in mind given that it can have a large impact on the outcome of divorce proceedings if a postnuptial agreement is held to be unenforceable. If that is the case, the agreement will have no bearing on the divorce proceedings and the agreements that the parties came to will be irrelevant to the division of property.

The Law Office of Erin M. Wilson is experienced in drafting both postnuptial and prenuptial agreements and is available for a consultation at 312-767-4220.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.