Should you Negotiate and Draft Your Own Postnuptial Agreement?

gavel over prenuptial agreement

Most people are familiar with the term prenuptial agreements, but much less so with postnuptial agreements.

Unlike premarital agreements, which are negotiated before marriage, postnuptial agreements are negotiated during marriage. Postnuptial agreements are, in essence, legal instruments for parties who intend to remain married, setting forth their rights and interests in the event of divorce or death.

One of the challenges of postnuptial agreements is that they are held to a strict standard for enforceability. Courts will often invalidate postnuptial agreements, because they are considered “potentially coercive” having been negotiated after a marriage. In other words, public policy is often against postnuptial agreements.

With that said, postnuptial agreements are allowed in Illinois divorces, provided certain standards are met. In this blog post we will discuss postnuptial agreements, whether it ever makes sense to negotiate or sign one without the benefit of counsel, and what can be done to aid the future enforceability of such agreements.

Negotiating Postnuptial Agreements in Chicago

Such as with prenuptial agreements, a valid postnuptial agreement cannot address issues of custody, parenting time, or child support. That is because courts look to the best interest of the children, and that cannot be known until such time as a custody order is about to be entered.

Postnuptial agreements can address many other issues, however, including:

  • Future inheritances
  • Marital property and debts
  • Alimony
  • Gifted or otherwise exempted property

As you can see, the above list covers most of the issues that may be addressed in a divorce agreement. It also allows for the opportunity to address certain issues more commonly covered by wills or estates.

For a postnuptial agreement to be enforceable, there are certain basic requirements that must be met. Those requirements include:

  • The agreement must be in writing. An oral agreement or promise will not be binding
  • The agreement must be consistent with the laws of the state
  • The agreement cannot be entered under duress or fraud
  • The agreement cannot be deemed so unfair as to be considered “unconscionable.” Unconscionable generally means so fundamentally unfair as to be unbinding.
  • The agreement should not be considered as part of “divorce planning.”
  • The agreement cannot be fraudulent, or induced by fraud

Valid postnuptial agreements must be considered fair and equitable and will only be enforceable if both parties intend to remain in the marriage. Postnuptial agreements are not meant as a tool to get a jump on a divorce.

Enforceability becomes further strained if the parties attempt to negotiate a postnuptial agreement themselves.

Can You Negotiate Your Own Postnuptial Agreement?

In theory it is possible to negotiate a legally binding written postnuptial agreement without the benefit of attorneys. It is highly unlikely, however, that such an agreement would be considered enforceable.

Postnuptial agreements are complex documents, and without the benefit of counsel it will prove difficult to craft an agreement that is not “unconscionable,” or which does not otherwise violate the basic tenets of postnuptial agreement law.

If one party to the agreement has the benefit of the counsel, while the other does not, that will potentially speak to duress or unconscionability. You can attempt to negotiate your own Chicago postnuptial agreement, but more frequently than not it will not be worth the paper it is written on. Attempting to later invalidate or enforce the agreement will be costly in court.

To aid enforceability, you should retain independent counsel. This will also help ensure that you are entering into a binding and fair postnuptial agreement. It rarely proves intelligent to write your own postnuptial agreement.

Without seeking independent counsel, it will be difficult or impossible to ascertain whether a postnuptial agreement is fair and equitable. Although you may think you’re saving money by not hiring counsel, such short-term savings will likely prove penny wise and pound foolish at the time you attempt to enforce the agreement.

Another common question about postnuptial agreements is whether they are confidential or become public records.

Are Postnuptial Agreements Public Records in Illinois?

A postnuptial agreement will not be public record unless a party attempts to enforce it in court. Until that time, it will be kept in the parties’ possession and will not be filed with the court, similar to a will. Any copies should be maintained by both parties.

But remember, this is not something that should be done without obtaining independent counsel.

Contact the Law Offices of Jonathan Merel, P.C. Today!

If you’re considering negotiating or drafting a postnuptial agreement, don’t go it alone. Call (312) 487-2795 or complete an online contact form to schedule a consultation with the Law Offices of Jonathan Merel, P.C.

We look forward to discussing this important family law issue.

Related Posts
  • The Value of Prenuptial and Postnuptial Agreements in High-Asset Divorce Cases Read More
  • Non-Marital Property Can Become Marital Property in Illinois Read More
  • Can Child Custody Be Included in a Prenuptial Agreement? Read More
/