Advantages and Disadvantages of Postnuptial Agreements

 Posted on October 12, 2017 in Postnuptial Agreements

Postnuptial agreements are often grouped in the same discussions as prenuptial agreements. Both are legal documents that help spouses predetermine the terms of a hypothetical divorce, including:

• Defining marital and nonmarital properties;
• Determining how marital properties would be divided;
• Protecting spouses from nonmarital debt; and
• Setting the expectations for spousal maintenance.

By definition, the difference between a prenuptial and postnuptial agreement is that postnuptial agreements are reached after the spouses have married. Spouses may opt for a postnuptial agreement if it is too late to create a prenuptial agreement or they need to change the prenuptial agreement. However, spouses can have different reasons for creating a postnuptial agreement than they would for a prenuptial agreement.

Changing Relationship

A couple will learn more about each other after they are married, including factors that may lead to conflict. A person may discover that his or her spouse:

• Has different lifestyle or spending habits;
• Shows manipulative or abusive personality traits; or
• Was in some ways dishonest about him or herself before the marriage.

The idea of divorce may have been unfathomable before the marriage. Now, it seems possible. Faced with this realization, spouses may take a more pragmatic view of their marriage and prepare for the possibility of divorce with a postnuptial agreement.

Saving a Marriage

Some couples use the postnuptial agreement process as a way to strengthen their marriage when it is facing a specific crisis. Negotiating the agreement requires the spouses to communicate and cooperate with each other. They are admitting that divorce is a possibility and may realize that they need to change in order to save their marriage. The agreement can also be a deterrent against divorce. A spouse sees the financial consequences of continuing behavior that may lead to divorce.

Disadvantages

While both prenuptial and postnuptial agreements are helpful in the event of a divorce, prenuptial agreements are considered more advantageous for a couple of reasons:

• Once a couple has married, it becomes more difficult to distinguish between marital and nonmarital assets. Individual properties that predated the marriage have become shared properties, making it more difficult to argue that they should be considered nonmarital properties during the divorce; and
• Courts often hold postnuptial agreements under greater scrutiny than prenuptial agreements. Because the parties had already married when creating the agreement, they are expected to be more honest and fair with each other.

Making Your Decision

It may be difficult for you to talk with your spouse about creating a postnuptial agreement. A DuPage County family law attorney at Calabrese Associates, PC, can discuss the benefits of a postnuptial agreement and whether it is right for your marriage. To schedule a consultation, call 630-393-3111.

Source:

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2086&ChapterID=59