There are many reasons why it may make sense for you to consider entering into either a prenuptial or postnuptial agreement. At Granholm & Gynac, we assist clients with these documents to protect their assets and property in case of a separation, divorce, or even death.
Prenuptial (Premarital) Agreements
There are common when people marry late in life and bring significant assets (also potential liabilities) into the relationship. They are also often utilized when one or both parties have been married before, and may come into the new marriage with children from the prior relationship, and/or certain pre-existing legal obligations from a prior divorce.
Finally, premarital agreements often make sense in situations where one or both prospective spouses have great wealth, especially if there is a disparity of income and property between the parties. The point of negotiating a prenuptial agreement is to protect one or both parties if the couple ever gets divorced.
According to the Illinois Uniform Premarital Agreement Act, prenuptial agreements can do the following:
- Clearly identify the pre-marital, non-marital property of each party and stipulate that the other spouse would have no rights to those assets should the parties later get divorced.
- Bar (or limit) one or both parties from being able to seek spousal maintenance from the other.
- Prevent or limit spouses from being automatically entitled to inherit property from the other, absent specific provisions in a subsequently executed estate plan that state otherwise.
- Address in advance various other concerns related to assets, liabilities and support in a potential future divorce.
It’s important to note that premarital agreements can never stipulate provisions affecting children such as custody, parenting time or the setting of child support amounts. If you would like to explore having a prenuptial agreement in place before getting married, the attorneys at Granholm & Gynac can assist you in drafting, reviewing and negotiating such an agreement.
Illinois law permits already married couples to negotiate postnuptial agreements – contracts to decide or limit certain outcomes in a future divorce in exchange for the parties remaining married. The premise is that one of the spouses would otherwise file for an immediate divorce unless the other spouse was willing to enter into such an agreement. The consideration is the parties continuing to stay married, at least for some period of time.
Postnuptial agreements can often accomplish many of the same outcomes as a prenuptial agreement, although there are significant limits and restrictions on how they can be properly negotiated. Because of those restrictions, it makes sense that if you are considering entering into a postnuptial agreement, you retain qualified counsel such as one of the lawyers at Granholm & Gynac.
Enforcement and Invalidation
Premarital and postmarital agreements are essentially contracts, and if they are not properly prepared in the first place, significant litigation may be required to have them enforced. Reasons why agreements may be challenged and potentially invalidated include but are not limited to:
- One of the parties signed under duress or was threatened or coerced into agreement
- One or both of the parties committed fraud by misrepresenting their income, assets or liabilities
- The court finds the terms of the agreement unconscionable, completely one-sided or unfair to the detriment of one party
- One of the parties can prove they didn’t understand what they were agreeing to – to avoid this, both sides should always be represented by counsel for maximum enforceability
Given the number of ways a prenuptial or postnuptial agreement can potentially get thrown out if later challenged, it is imperative that anyone entering into such agreements have the advice of experienced attorneys. At Granholm & Gynac, we can help to ensure that your agreement will withstand future court challenges, or work with you to defeat a prior agreement when necessary.