Prenuptial Agreements vs. Postnuptial Agreements
The biggest difference between a prenuptial agreement (prenup) and a postnuptial agreement (postnup) is timing. A prenup is created before a couple gets married, while a postnup is created after a couple is already married. While that is the most obvious difference, it is not the only one that matters when deciding which option may be right for your situation.
At Conniff & Keleher, LLC, our Chicago and Oak Park family law attorneys help clients understand how these marital agreements work, what they can cover, and what they cannot include.
Prenup vs. Postnup at a Glance
| Comparison | Prenuptial Agreement | Postnuptial Agreement |
|---|---|---|
| Timing | Signed before marriage | Signed after marriage |
| Typical Use | Outlines property division and financial terms if divorce or death occurs | Clarifies how marital assets, separate assets, and debts should be handled |
| Common Reason | One or both spouses have significant assets, debt concerns, business ownership, or children from a prior relationship | Finances changed after marriage, spouses want additional clarity, or a prenup was never completed |
Quick Facts About Prenups and Postnups
- A prenup is signed before marriage; a postnup is signed after.
- Both can address property division and how assets are handled if the marriage ends.
- Neither can decide child support or child custody.
- Neither can include anything illegal or terms that financially reward divorce.
- Couples sometimes choose a postnup because they never completed a prenup before the wedding.
What Is a Prenuptial Agreement?
A prenuptial agreement is an agreement made before a couple gets married that outlines how their assets are to be divided if they were to get divorced or if one spouse were to pass away. Some people feel a prenup is unromantic, while others see it as a practical way to plan ahead, especially for couples who have individual assets or children from previous relationships.
What Can Be Included in a Prenup?
A prenuptial agreement may address topics such as:
- Distinctions between separate property and marital property
- Protections against the other spouse’s debts
- Terms designed to provide for children from previous marriages
- Protections designed to keep family property in the family
- Protections for estate plans
- Instructions on how property should be distributed in the event of divorce, including matters involving business ownership
What Cannot Be Included in a Prenup?
A prenuptial agreement cannot include:
- Terms detailing anything illegal
- Decisions regarding child support or child custody
- Terms that could encourage divorce through financial incentives
What Is a Postnuptial Agreement?
Once you are married, the way property is treated can become more complex, especially when assets are acquired or combined during the marriage. A postnuptial agreement is similar to a prenup in that it allows you to create an outline for how assets should be divided in the event of divorce or the passing of a spouse. However, a postnuptial agreement is created after marriage.
Some couples opt for a postnuptial agreement simply because, through the excitement of planning their marriage, they never considered a prenup but still recognize the value of an agreed-upon plan for division of assets and liabilities.
What Can Be Included in a Postnuptial Agreement?
A postnuptial agreement may include:
- Division of property and assets after divorce
- Limitations for spousal support
- Division of debts (mortgage loan, credit card debt, etc.)
- Instructions for handling assets following the death of one spouse
What Cannot Be Included in a Postnuptial Agreement?
A postnuptial agreement cannot include:
- Terms for child support and child custody
- Terms detailing anything illegal
What’s the Bottom Line?
Some people worry that a prenup or postnup invites negativity into a marriage, but that is not necessarily true. Prenups and postnups can foster thoughtful and respectful communication between a couple on financial issues. People and circumstances can change over time. If spouses eventually separate or if one spouse passes away, a prenuptial or postnuptial agreement may help reduce uncertainty, financial stress, and disputes.
Rather than viewing these agreements as a bad omen, many couples see them as a way to enhance communication on financial matters, protect both spouses and create clearer financial expectations.
Consult a Family Law Attorney
Conniff & Keleher, LLC of Chicago and Oak Park invites those who may be unsure whether a prenup or postnuptial agreement is right for their marriage to contact us for a consultation. An experienced family law attorney from our team can discuss your options in greater depth and draft a marital agreement that addresses your goals. Contact us today.
Frequently Asked Questions About Prenups and Postnups in Illinois
What is the main difference between a prenup and a postnup?
A prenuptial agreement is signed before marriage, while a postnuptial agreement is signed after the marriage. Both can outline how property is handled if the marriage ends, but a prenup is signed before the marriage and a postnup is signed after the marriage.
What can a prenuptial agreement include?
A prenup can address the distinction between separate and marital property, protection from a spouse’s debts, provisions for children from a previous relationship, and instructions for how property should be divided in a divorce.
What can’t a prenuptial agreement include?
A prenup cannot include anything illegal, or agreements about child support, parenting time or custody, or any terms that create a financial incentive to divorce.
What can a postnuptial agreement include?
A postnup can address how property and assets are divided after divorce, limitations on spousal support, division of debts, and instructions for handling assets if one spouse passes away.
What can’t a postnuptial agreement include?
Like a prenup, a postnup cannot include agreements about child support, parenting time or custody, or anything illegal.
Why would a couple choose a postnup instead of a prenup?
Some couples never signed a prenup before their marriage but still want a clear, agreed-on plan for handling assets and liabilities, so, instead, they complete a postnuptial agreement after their marriage.
