What if “I Do” Becomes “I Don’t”? The Significance of Illinois Prenuptial Agreements and Postnuptial Agreements

Illinois Prenuptial Agreements:

More frequently used than postnuptial agreements
• Common reasons:
o Protection of nonmarital assets (premarital property, gifts, inheritances, etc.)
o Prior divorce
o Desire to divorce more amicably if a dissolution of marriage occurs
o Time and cost savings if a dissolution of marriage occurs
• What they can do:
o Define and segregate nonmarital property and marital property
o Allocate nonmarital property and marital property
o Allocate nonmarital debt and marital debt
o Resolve issues pursuant to maintenance (spousal support)
• What they cannot do:
o Resolve any issues related to hypothetical or actual children (e.g., the allocation of parental responsibilities, the allocation of parenting time, child support, child-related expenses, and college expenses)
• Consideration:
o The marriage itself
• How they are used in a dissolution of marriage:
o Validated as enforceable either by agreement or by judicial ruling
o Potential exposure to challenge at the time of dissolution of marriage
 Fraud
 Duress
 Coercion
 Unconscionability
• Essential for both parties to be represented by counsel
o Reduces potential exposure to challenge at the time of dissolution of marriage
• Car insurance analogy: Like car insurance, we hope to never need to use a prenuptial agreement, but if it becomes necessary it is in force for potential validation by agreement or by the court.

Illinois Postnuptial Agreements:

• Less frequently used than prenuptial agreements
• Common reasons:
o Protection of nonmarital assets (postmarital gifts, inheritances, etc.)
o Marital discord
o Desire to divorce more amicably if a dissolution of marriage occurs
o Time and cost savings if a dissolution of marriage occurs
• What they can do:
o Define and segregate nonmarital property and marital property
o Allocate nonmarital property and marital property
o Allocate nonmarital debt and marital debt
o Resolve issues pursuant to maintenance (spousal support)
• What they cannot do:
o Resolve any issues related to hypothetical or actual children (e.g., the allocation of parental responsibilities, the allocation of parenting time, child support, child-related expenses, and college expenses)
• Consideration:
o Independent consideration is required other than the marriage itself
o Examples:
 Forebearance of filing for dissolution of marriage
 Mutual release of property rights between spouses
• How they are used in a dissolution of marriage:
o Validated as enforceable either by agreement or by judicial ruling
o Potential exposure to challenge at the time of dissolution of marriage
 Fraud
 Duress
 Coercion
 Unconscionability
• Essential for both parties to be represented by counsel
o Reduces potential exposure to challenge at the time of dissolution of marriage
• Car insurance analogy: Like car insurance, we hope to never need to use a postnuptial agreement, but if it becomes necessary it is in force for potential validation by agreement or by the court.

Jennifer Lavin
Principal Attorney, Jennifer L. Lavin, P.C.
605 North Michigan Avenue, 4th Floor
Chicago, Illinois 60611
Office: (312) 919-8857
Fax: (312) 858-1111
Email: jll@lavinfamilylaw.com
Website: www.lavinfamilylaw.com

Content provided by Women Belong member Jennifer Lavin