It seems that everyone has some familiarity with pre-nuptial or ante-nuptial agreements, which are used prior to marriage. Post-nuptial agreements are almost the same thing, but they are entered into AFTER the parties are married. They are limited to the division of property only, and cannot be used to determine spousal or child support.

They are not as common as pre-nuptial agreements. However, they are very helpful to spouses who have not quite yet decided to divorce, but wish to put a particular property issue to rest in case they ever do divorce. Sometimes, that issue is the very cause of the unhappiness in the marriage.

An example of this might be in cases where one spouse owned the marital home prior to the marriage, and the other spouse made all or most of the house payments (or paid for or contributed to the cost of major remodeling) over the many years of their marriage. Whenever the parties quarrel, the property right (or lack thereof) of the non-owner spouse inevitably comes up, and the parties’ find themselves having the same old disagreement. The use of a post-nuptial agreement can give them a way to end this on-going dispute once and for all, without having to get divorced. They can decide now in their post-nuptial agreement exactly what each of their respective rights in and to the equity of the home will be when and if they divorce.

Post-nuptial (just as pre-nuptial) agreements are governed by contract law. They must recite a valid consideration. To put this in plain English, the spouse, in the example above, that owns the home must pay a conscionable sum to the other spouse in order for it to be an enforceable post-nuptial agreement.

As in the case with pre-nuptial agreements, both parties should be represented by their own attorney.

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Kari and Richard are staunch advocates of the non-court approach to divorce, and are also active and seasoned litigators with over 80 years of combined trial experience in the Illinois divorce courts of Cook and DuPage counties.