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Many people get married without creating a prenuptial agreement. Then, maybe a few years or even a few days after the wedding, they determine that they need a bit of protection in case they get divorced. Maybe they have started a business that is hugely successful. Or, maybe they just did not realize how much they needed a prenuptial agreement before the big day. Whatever the reason, now the couple understands that they need to protect their assets. So, they start thinking about drafting a postnuptial agreement.
When this is the case, the couple may decide to simply draft an agreement on their own and sign it. That is perfectly legal and, if done right, enforceable. However, doing it right is key. An Illinois family lawyer can help with this and ensure that in the event that the worst happens, everyone is protected. Below are just two reasons you should not draft a postnuptial agreement without first speaking to an attorney.
Postnuptial agreements are legal documents that, when done right, can help protect both spouses. However, when they are not done right, postnuptial agreements also pose risks for both spouses. Postnuptial agreements are legally binding documents and so, neither spouse can remove themselves from the terms later on simply because they do not like them, or because they did not read or fully understand what the contract said.
Sometimes, spouses enter into postnuptial agreements without realizing that they are giving away many of their rights. For example, one spouse may build a business all on their own during the marriage. During a divorce, they then learn that they have agreed to give their spouse half of the business, even when they did not contribute to the business during the marriage. Too often, spouses do not realize that they are giving up these rights and end up giving away more than they should.
Additionally, postnuptial agreements are not always drafted or executed properly. Spouses believe that they are protected only to again, find too late that they are not. When looking at postnuptial agreements, the courts will determine if it is enforceable. If they find it is not, it will be rendered useless and not provide the protection many spouses thought they had.
For all of these reasons, it is crucial that anyone entering into a postnuptial agreement should speak to an attorney that can help them draft their agreement. An attorney will ensure your rights are protected and that the agreement is also enforceable by the courts.
Postnuptial agreements can provide a great deal of protection, but they also have their limits. For example, an attorney will understand that if the postnuptial include child custody or child support terms that are not in the best interests of the children, the courts will not enforce them.
An attorney will also understand that if the agreement goes against public policy, the courts will also not enforce it. They will also understand contract law, and that if a postnuptial agreement goes against any of those laws, they can be challenged. A lawyer will not only understand all of these things, but also ensure that an agreement abides by the terms the courts deem enforceable, so you are really getting all the protection you thought you were.
If you are already married and are now thinking about drafting a postnuptial agreement, do not go it alone. Call our skilled Hinsdale family lawyers at the Law Office of Martoccio & Martoccio at 630-920-8855 to get the help you need. We know how to create a contract that will fully protect you and be enforceable by the courts. We also offer free consultations, so contact us today to get the legal advice you need.