“Marriage is really tough because you have to
deal with feelings . . . and lawyers.”
– Richard Pryor
In previous issues of A Potpourri, we discussed the criteria for entering into a valid prenuptial agreement in order to protect significant business interests or estate assets acquired prior to the marriage and to remove the uncertainty and expense associated with a dissolution of the marriage if the marriage fails. Failure to enter into a prenuptial agreement, however, does not prevent a husband and wife from obtaining these same benefits by entering into a postnuptial agreement.
A postnuptial agreement is an agreement entered into by a husband and wife after their marriage. The agreement defines each spouse's right to the property of the marital estate in the event of the termination of the marriage by death or dissolution. Thus, the criteria for entering into a valid postnuptial agreement are similar to those necessary for the entry into a valid prenuptial agreement.
In order to be enforceable, a postnuptial agreement must be supported by consideration. Such consideration usually consists of the mutual promises set forth in the postnuptial agreement, but may also consist of other types of consideration used to support contracts. As an example, in the recent Illinois case of In re Marriage of Tabassum, the wife’s five month forbearance from filing a divorce constituted consideration for a postnuptial agreement in which she promised she would reconcile with her husband and forgo filing for divorce.
A postnuptial agreement must be entered into freely and voluntarily by the husband and wife and its terms must be generally fair and equitable. When entering into a postnuptial agreement, each spouse must make a complete disclosure to the other of his or her financial assets and status. A postnuptial agreement entered into without such disclosures, and without an arm’s-length negotiation, may be held invalid if the court finds the agreement was the product of misrepresentation, duress or coercion. To avoid claims of misrepresentation, duress or coercion, it is recommended that both parties be represented by separate counsel when entering into a postnuptial agreement and that their disclosures be complete.
A postnuptial agreement should set forth each party’s rights to their marital property. The agreement should also contain a release of each party’s rights in the other’s property, thereby extinguishing all such rights. Finally, the postnuptial agreement should not attempt to avoid the supporting spouse’s respective duties to pay child and spousal maintenance, where appropriate, upon a dissolution of marriage.
If you would like to learn more about either prenuptial or postnuptial marital agreements, please telephone a member of the firm.