Americans are no stranger to the premarital agreement, or prenup, as it’s colloquially known. A 2022 Harris poll found 15% of Americans have a prenup, up from 3% in 2010. 

That increase is likely due to two primary factors:

• Millennials (the generation born between 1980 and 1995) are marrying later and are bringing more assets (and debt) into their relationships. 
• In 2015, the Supreme Court’s decision on marriage equality allowed LGBTQ+ couples in every state to legally wed. Since then, hundreds of thousands of couples have married — many after decades of committed partnership — and legally combined their assets.

Premarital agreements aren’t just for the wealthy. They can help any couple decide how to divide property in the case of a divorce or death of one spouse, regardless of income level or assets entering the marriage.

But the benefits of a marital agreement aren’t limited to the period before a couple takes their vows. Postmarital or postnuptial agreements are also an option at any point in the marriage. Let’s explore the differences between pre- and post-marital agreements, the reasons a couple might consider a post-marital agreement, and the simple three-step process for obtaining one.

What is a postmarital agreement?
Exactly what it sounds like! Postmarital or postnuptial agreements cover the same assets and subject matter as a prenup, they’re just created and signed at a later date. And it’s never too late to get a postnup — spouses can sign these contracts at any time in their marriage, even if you’re separated or considering a divorce. 

So why haven’t you heard of a postnup? They’re far less common. In fact, while Prather Ebner Wilson Partner Landon Wilson estimates he completes 10 premarital agreements per year, he can’t remember ever completing a postnup.

How are postmarital agreements different from a prenup?
Aside from the obvious before/after factors, postmarital agreements involve a bit more legal and personal red tape. Both parties must offer “consideration” when negotiating a postnuptial agreement — each partner must agree to “give up” something in the case of divorce. The enforceability of the postnup contract would come into question if the agreement is completely one-sided. 

In a prenup, the act of getting married is sufficient consideration, but the Illinois Supreme Court has found the promise to remain married is not valid consideration for a postnuptial agreement. Examples of consideration include, but are not limited to:

• Waiving the right to receive maintenance, or spousal support/alimony
• Treating nonmarital property as marital
• Treating nonmarital debt as marital

Unlike a prenup, a postnuptial will be reviewed by the court to determine if it is enforceable. In Illinois, a judge has the power to disregard or change parts of the postnuptial agreement necessary. The agreement may not be enforced if:

• One spouse coerces the other into signing a postmarital agreement against their will
• One partner misrepresented themselves or their assets when signing the postnup
• The signed contract is so unfair it can’t be enforced in good conscience. In this case, the court may uphold parts of the agreement and change others.

Why should couples consider a postnuptial agreement?
Postmarital agreements are a great option for couples who have experienced a lot of change during their marriage. Postnuptial agreements are also a smart choice for couples with children from a previous marriage, as the contracts ensure the interests of those children are secured. Your growth and financial successes are worth celebrating — but they’re also worth protecting!

In particular, LGBTQ+ spouses can benefit from signing a postnuptial agreement. Thanks in part to the relative recency of their marriage rights, LGBTQ+ couples are more likely to get married later in life and have longer relationships before they’re married. This means couples are more likely to own a home together or have a larger amount of merged assets before marriage — and more combined premarital assets can mean a messier time dividing them in the case of a divorce. 

Illinois is an equitable distribution state, so marital property is not divided evenly between spouses in a divorce. Instead, the court follows the Illinois property division laws to split assets based on what is fair. An existing pre- or post-marital agreement guides the court based on the couple’s decisions during a clear-headed, collaborative moment.

How can spouses start the postnuptial agreement process?
Prather Ebner Wilson shares decades of collective experience navigating pre- and post-marital agreements, and our personal touch ensures your family’s interests are protected.

• Our process starts with an initial meeting to discuss what your agreement can cover, and what you’d like included. (Each spouse must retain their own firm; our attorneys can only represent one member of a couple.)
• We then prepare a draft agreement or review a draft from your spouse’s attorney, then negotiate the terms of your agreement.
• Finally, we schedule a signing to secure the agreement.

Postnuptial agreements ensure spouses make the big decisions about your assets and your children rather than leaving the outcome to a judge. Reach out to our team to learn more or start your postnuptial agreement process.