Many couples who have a lot of assets at stake compose prenuptial agreements to describe how they would like their property divided should they decide to divorce. However, not every couple takes this option, though after tying the knot, some couples may wonder if they should have done otherwise. Fortunately, drafting a postnuptial agreement is an option. Still, any couple should be careful that they do not unintentionally make the postnup unenforceable in an Illinois court of law.
Per FindLaw, since postnuptial agreements generally handle the same issues that prenuptial agreements address, the same circumstances that can cause a court to void part or all of a prenuptial agreement also apply to a postnuptial. Like a prenuptial, a postnuptial agreement should be in written form. The spouses involved should have reasonable time to read over it and ponder its provisions. No pressure or duress should be involved to force a party to sign the agreement.
Postnuptials may be on shakier ground than a prenup if you and your spouse use the same attorney to help draft the agreement. Each spouse is to retain separate counsel while putting together a prenuptial, however, married spouses have been known to use the same attorney while drafting a postnuptial. Many states actually have no problem with this arrangement, though doing so might invite greater scrutiny from a court to ensure the document is fair to both spouses.
Additionally, as the Spruce points out, a judge is going to scrutinize a postnuptial to see whether all the assets have been disclosed. The agreement must be fair in its provisions for each spouse, as judges will not look favorably on a postnuptial agreement that entitles one spouse to so much of the assets that the other spouse is left in poor financial straits. While a postnuptial agreement can help couples manage what happens to their assets if they should divorce, the key to a solid postnuptial is honesty, fairness and disclosure.
