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What Is the Difference Between Prenuptial and Postnuptial Agreements?

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People who get married usually expect to be together with their partner for the rest of their lives. However, the reality is that a significant percentage of marriages do not last, and couples should be prepared for the possibility of divorce. In many cases, a prenuptial or postnuptial agreement can provide spouses with a sense of security and help them avoid uncertainty if they do decide to end their marriage.

While prenuptial agreements, which are commonly known as “prenups,” are often thought of as something to be used by people who are rich and famous, they can provide benefits for any couple. Both prenups and postnuptial agreements (“postnups”) can allow a couple to make decisions about how financial issues and certain other matters will be handled in the case of divorce.

If you are considering a prenup or postnup, you will want to work with a DuPage County family law attorney who can ensure that you consider all of the legal aspects of the decisions made by you and your partner. Your lawyer can help you negotiate terms that will meet your needs, and they can ensure that your agreement will meet all requirements to be valid and enforceable should any disputes arise during a potential divorce.

What Is the Difference Between a Prenup and a Postnup?

Both types of marital agreements function as a legally binding contract between married spouses. A prenuptial agreement must be created before a couple’s marriage, and it will go into effect once they become legally married. A postnuptial agreement may be created after a couple is already married.

To ensure that a prenup or postnup will be valid and enforceable, both parties should fully disclose all relevant financial information to each other. This includes all forms of income, all of the assets the parties own together or separately, and any debts owed by either party. It is also a good idea to make sure the parties have time to consider an agreement and consult with an attorney before signing it. If a person is presented with a prenup immediately before their wedding and told that signing it is a condition of getting married, this may be considered coercion, and the agreement may not be enforceable.

What Decisions Can Be Made in a Marital Agreement?

While the specific laws related to prenuptial or postnuptial agreements may vary from state to state, in most cases, these agreements can make decisions about the property owned by spouses and other financial matters. A prenup or postnup can specify each spouse’s rights and responsibilities regarding certain property or assets during their marriage, and it can make decisions about how ownership of property will be handled in a divorce. An agreement may specify that certain assets are either marital property or separate property, or it may describe how different pieces of property will be divided between the spouses. A prenup or postnup may also specify that children or other heirs will receive certain property in the case of divorce or the death of a spouse.

Prenups and postnups can also make decisions about spousal support (also known as alimony or spousal maintenance) following a divorce. An agreement can state whether this type of support will be paid, the amount and duration of support payments, or specific circumstances that would disqualify a spouse from receiving alimony, such as infidelity.

It is important to note that marital agreements cannot make decisions about matters related to a couple’s children, such as child custody or child support. These matters will be addressed in family court at the time of a couple’s breakup to ensure that children’s best interests are protected. Since parents cannot know ahead of time what would be best for children, any terms of a prenup or postnup that address the parties’ parental responsibilities, the amount of parenting time children will have with each party, or the amount of financial support a parent will be obligated to pay will not be enforceable.

When Is a Prenup Beneficial?

Prenuptial agreements are most often used when one or both parties own significant assets before getting married, but they can also provide reassurance for anyone who wants to ensure that the property they own will be protected. Couples can help avoid uncertainty and contentious disputes during divorce by specifying which assets will remain in the possession of which spouse, and they can also address concerns about their obligations to pay spousal support. 

Prenups can also be beneficial for business owners, and an agreement can make sure a business will remain intact and operational following a divorce. Those who are getting married for a second time or who have children from a previous relationship may also use a prenup to state that certain assets will be set aside to give to their children rather than being divided in a divorce.

What Benefits Can a Postnup Provide?

Postnuptial agreements can provide spouses with financial security if they are concerned about their ability to support themselves and their family if they get divorced. For example, if one spouse is planning to start a business or make a risky financial investment, a postnup can be used to protect assets such as the marital home and ensure that the other spouse will not be left in a difficult financial position. 

A postnup may also provide spouses with a sense of security if they are experiencing relationship difficulties. By clearly defining what will happen if the relationship does end, a postnuptial agreement can provide reassurance that spouses will have the financial resources they need, and it can give spouses the motivation to resolve their marital issues and avoid divorce.

Prenuptial and postnuptial agreements can not only alleviate financial concerns for spouses, but they can also make a potential divorce much easier. Because many of the decisions will have already been made, the terms of a prenup or postnup can be incorporated into a divorce decree, allowing the parties to complete the process with minimal conflict. If you are considering a marital agreement, a Naperville divorce lawyer can help you understand your rights and make sure your prenup or postnup will meet your needs.

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Tricia D. Goostree knew she wanted to be an attorney when she was 10 years old. After being accepted to the John Marshall Law School with a Dean's Scholarship, Tricia added excellent writing skills to her love of working in the courtroom. Tricia is the founder and managing partner of the Goostree Law Group, P.C. in St. Charles, Illinois.