Divorce Attorney Scott J. Stadler

    • 03 JUL 18
    An Introduction to Florida Prenuptial and Postnuptial Agreements

    An Introduction to Florida Prenuptial and Postnuptial Agreements

    Historically, prenuptial agreements have been associated with the ultra-wealthy who are looking to protect their families’ interests when entering into a marriage. However, prenuptial agreements have actually become much more common and accessible in recent years. In spite of their bad reputation, these marital agreements have advanced to a place where they can fulfill their purpose of protecting assets but may also provide couples considering marriage important peace of mind. When you factor in postnuptial agreements, these marital contracts can even play an important role in keeping a marriage strong and healthy.

    As with any legal contract, there are important requirements and expectations when it comes to prenuptial and/or postnuptial agreements. Making sure that your agreements meet these requirements is an important part of the process of entering into such agreements. Working with an experienced family lawyer who understands the role prenuptial and/or postnuptial agreements may play in a marriage is often a good way to start exploring whether such agreements might be right for you and your family.

    Prenuptial Agreement Basics

    As most people know, prenuptial agreements are contracts that couples enter into prior to getting married. These contracts typically spell out the division of assets in case of divorce. They can also be used to determine spousal support obligations in the case of divorce. As they set terms for actions occurring after a marriage, they do not take effect until a marriage has taken place.

    Postnuptial Agreement Basics

    For the most part, postnuptial agreements are similar to prenuptial agreements. The main difference between the two is that postnuptial agreements are entered into after individuals have gotten married.

    There are often additional reasons for considering a postnuptial agreement. Postnuptial agreements can play an important role in separation and divorce by saving time and money when it comes to issues like asset division and spousal support.

    While it is true that some postnuptial agreements come into being because marriage demonstrates the need to have had a prenuptial agreement, that is not always the case. Sometimes events like a significant inheritance may precipitate the need for a postnuptial agreement either because of the terms of such an inheritance or as a way to protect and preserve that inheritance for specific family members if the beneficiary were to face divorce.

    There are even times when a postnuptial agreement can be used to strengthen a marriage. Postnuptial agreements may effectively lay out expectations that must be met in order for a marriage to continue moving forward. This may be a helpful approach when issues like substance abuse or other addictions play a role in causing strain within the marriage. By using these experiences to create a framework for marital success, each spouse is made aware of their responsibilities moving forward in the marriage. This may also be a helpful approach in overcoming financial issues that creep into a marriage, which are often a major factor in divorce.

    Prenuptial and Postnuptial Agreement Requirements

    As these agreements can have far-reaching effects on all parties in a marriage, there are some specific legal requirements that must be met in order for a prenuptial or postnuptial agreement to be considered valid and enforceable. According to Florida Revised Statutes Title VI Section 61.079(3), these include:

    • The agreements must be made in writing; and
    • The agreements must be signed by both parties.

    Generally, courts will also investigate whether the agreements were made pursuant to a full financial disclosure by both parties, including assets and debts. They may also look to see if both parties had aces to independent legal counsel during the drafting and entering into of these agreements.

    Prenuptial and/or postnuptial agreements cannot be used to determine matters of custody or child support. Typically, child support is awarded based on a predetermined formula implemented by the state. Child custody determinations that cannot be worked out by the parents and must be determined by a court, or simply those that need court approval, must adhered to the state’s best interests of the child standard. An experienced child custody lawyer can help you understand this standard and what it may mean for you.

    Potential Pitfalls

    If individuals interested in these agreements are not careful, part or all of the agreement may be determined to be unenforceable. That is one of the biggest pitfalls in using generic forms or attempting to navigate the creation of such an agreement without legal assistance. If an agreement is found to be unenforceable, then the time, money, and energy you put into creating it will likely have been for nothing and you may end up spending even more of each fighting it out in court. While no result is ever guaranteed, an experienced marital agreements attorney understands important nuances in the law and how they may apply to the unique terms and conditions within your agreement.

    A Lawyer’s Role

    It is important to make sure that you do not approach prenuptial and/or postnuptial agreements as planning for a marriage to fail. Not only will this approach likely increase the tension and animosity potentially already surrounding use of such an agreement, but it may cause you to lose sight of important goals throughout the drafting process. Such a view may also limit the potential effectiveness of these documents and distract from the true purpose you had in exploring their use in the first place.

    When it comes to marital contracts like prenuptial and postnuptial agreements, there is a great deal at stake. The efficacy of the agreement in question can have an immediate and long-term effect on you and other members of your family, so working with an experienced legal advocate can be an important part of the process. If you have questions or concerns about whether prenuptial and/or postnuptial agreements are right for you, contact Scott J. Stadler to schedule a consultation and find out more about how these agreements can play a role in your marriage.