What Is an Illinois Postnuptial Agreement?
An Illinois postnuptial agreement is a written contract between spouses. It comes after marriage and lays out how they’ll handle their finances if they ever divorce or if one spouse dies. It’s different from a prenuptial agreement, which spouses sign before getting married. In either case, for the agreement to be valid, both spouses need to sign it voluntarily.
A postnup can protect each spouse’s financial interests and clarify how to divide assets if the marriage dissolves. For example, you can use it to determine the division of each spouse’s property, which will be enforced later through a divorce agreement.
Without a postnup, state law requires courts to divide marital property according to equitable distribution rules under 750 ILCS 5/503(d). This default approach may not match your preferences. Instead, you can create a postnup to outline your own terms.
How to Write a Postnuptial Agreement in Illinois
You can write a postnuptial agreement in Illinois using our form builder, which makes it simple to input the key information you’ll need to include.
- List the names and current addresses of both spouses. Establishing clear identifying information helps ensure the agreement is valid.
- Provide background information about each spouse. Include details about prior marriages, children from other relationships, and children from this marriage.
- Identify all property acquired before and during the marriage. Classify it as separate or marital property. This classification helps determine how assets will be divided in the event of a divorce.
- Specify how marital property will be divided if the marriage ends. You can outline your preferences here instead of relying on Illinois’s default equitable distribution rules.
- Address any increase in the value of a business started or acquired during the marriage. This adds clarity on how business growth will or won’t be shared if you separate.
- List all debts acquired during the marriage. Decide how you’ll allocate mortgages, loans, or credit card balances.
- Determine how you’ll file income taxes during the marriage. You can choose to file jointly or separately.
- Set each spouse’s responsibility for household expenses during the marriage. This helps set expectations around shared living costs.
- State how the marital home or its proceeds will be divided in the event of a divorce. You can decide whether one spouse will keep the home or if it will be sold.
- Address custody or visitation rights for any pets. In Illinois, while pets aren’t children in the eyes of the law, courts can consider the well-being of companion animals and allocate responsibility accordingly (per 750 ILCS 5/503(n)).
- Outline any agreements about the payment of spousal support in the event of a divorce. Illinois law (750 ILCS 5/504) sets default spousal support guidelines, but you can agree to waive or change them.
- Include any terms about the rights of either spouse if one becomes disabled or passes away. This can include decisions about financial support, care, or inheritance.
- Establish how disputes related to the postnuptial agreement will be resolved if they arise. You might choose arbitration, mediation, or another method.
- Sign and notarize your postnuptial agreement. Illinois doesn’t require notarization, but doing so can help confirm that both parties signed voluntarily, which can strengthen the agreement’s enforceability.
Sample Illinois Postnuptial Agreement
View a free sample Illinois postnuptial agreement template to learn what elements it has. Then, create your own using our document editor and download it in PDF or Word format.
Legal Requirements and Considerations for Illinois Postnups
Illinois doesn’t have a specific statute that sets the legal requirements for writing a valid postnuptial agreement. However, postnuptial agreements must meet the same standards that apply to any legally binding contract. That means each spouse must sign on their own terms. They must not sign under coercion, duress, or undue influence. There may also be no fraud or lack of capacity.
To be enforceable, an Illinois postnuptial agreement also must be in writing. Beyond these basics, here are a few other key considerations to help make sure your Illinois postnup will stand up in court.
Signing and Enforceability
Each spouse must sign and date the agreement. You can also have an Illinois notary public complete an acknowledgment form. This document provides additional assurance about the authenticity of each spouse’s signature.
Financial Disclosure
Spouses must provide each other with a proper financial disclosure. In this report, they reveal their property, debts, and financial obligations. Ensure to attach a financial disclosure schedule that states the name and value of each asset or debt. Failure to engage in full disclosure can result in the agreement being invalidated if it is later challenged.
Excluded Terms
Contract terms are not enforceable when they contain clauses that violate the law or go against public policy. In an Illinois postnup, for example, you cannot enforce provisions related to child support, custody, or visitation. The authority to determine these terms belongs to the Illinois judicial system. It evaluates terms for children based on the parents’ incomes and the children’s best interest under 750 ILCS 5/505 and 7 ILCS 5/602.7.
Attorney Representation
Illinois does not require spouses to have attorney representation when entering into a postnup. However, independent legal counsel can help each spouse understand how the agreement impacts them. It can also help to confirm that a postnup complies with applicable Illinois laws.
Spousal Support Waivers
You can agree to waive the right to spousal support in an Illinois postnup. A court will consider the terms of a valid contract between spouses and other relevant factors when deciding on orders for spousal support under 750 ILCS 5/504(13). A postnup containing provisions for support can remove this issue from the court’s jurisdiction.
Burden of Proof
During an Illinois divorce proceeding, the court must review the evidence to decide on issues like equitable distribution. A spouse who claims an asset to be separate property will have the burden of proof to show that the asset is separate. A valid postnup can eliminate the uncertainty by classifying which assets are separate ahead of time. This means the court does not have to make this decision in the event of a divorce.
