Getting married is one of the happiest moments in everyone’s life – probably the only moment when both spouses look in the same direction – into the bright future. Excited about the days and years ahead, no one wants to think about divorce right after tying the knot.
That’s why agreements dealing with marital property division, alimony, and other related issues have a negative connotation. People tend to think of them as calculated and unromantic.
Contrary to common perception (or misperception), postnuptial agreements have a twofold role: asset protection and building trust and communication during the marriage.
This blog post will discuss the legal aspects of postnuptial agreements in Florida, their contribution to enabling orderly divorce, and, most importantly, their role in preserving long-term, happy marriages.
Postnuptial agreements are legal documents (contracts) spouses sign after entering into the marriage to define property division, alimony, and other issues in case of a divorce.
Marital agreements were not always legal in Florida. A few decades ago, courts considered them to violate public policy, making divorce too easy. But, since the Florida Supreme Court’s decision in Posner v. Posner case (1970), prenuptial and postnuptial agreements became legal and widely accepted.
When Are Postnuptial Agreements Impermissible?
Despite being allowed by Florida law, in some cases, postnuptial agreements are legally impermissible:
Postnuptial agreements set in place clauses and mechanisms that will play a vital role in the event of divorce, preventing disorderly separation:
Florida is an equitable distribution state, meaning the court will divide property equally unless specific reasons justify unequal distribution. A judge can allocate more or less property to one spouse if that seems fair, considering the circumstances surrounding the case. To prevent courts from deciding on those issues following the equitable distribution theory, spouses can settle property division and alimony differently by signing the postnuptial agreement.
On top of playing a critical role in the division of assets, postnuptial agreements help with debt issues. If one of the spouses has significant debts, the so-called indemnification clause can ensure the other spouse will cover their debt. The clause can relate to either current or future liabilities (or both).
Alimony is another aspect of postnuptial agreements. Instead of letting courts decide the amount and duration of alimony one spouse must pay to another, they can negotiate and settle these issues without court involvement in a postnuptial agreement.
In addition to its conventional, divorce-oriented purpose, postnuptial agreements can contribute to preserving marriages and building trust and communication between spouses. Here’s how:
As mentioned, postnuptial agreements deal with the division of assets. In Florida’s equitable distribution system, these agreements ensure you and your spouse divide assets the way you think is best for both. Instead of letting outside decision-makers shape your future, you can negotiate your way out of the divorce regarding marital property. How can this help you improve your relationships? In a crisis, everything becomes a contested issue. The first thing couples quarrel about during challenging times is property. They argue about who will get more than half of their assets and seek wrongdoings on each other’s side that would justify an unequal division. Postnuptial agreements put an end to such discussions. By setting clear guidelines, the agreement defines precise criteria for assets division, helping the spouses avoid conflicts over property.
Asset division-related discussions between spouses generally occur in a court setting when the divorce is imminent. By court time, it is already late to save the marriage. The thing is that couples typically avoid discussing hot topics, and property division is one of them. On the other hand, some spouses are strong enough to look at things from all perspectives. By negotiating property issues in case of a divorce – they display an elevated level of openness and trust. Open talks about potentially unfavorable outcomes of their marriages show maturity and mutual respect. In addition to taking the first step in the right direction (protecting their assets), these couples further strengthen their relationship, build trust, and develop a deep respect for each other, making their marriage bulletproof.
Couples who don’t define and discuss the negative scenarios in their life tend to feel insecure. They don’t know how their partner will react in the event of divorce, which makes them anxious and unable to focus on the future. Contrary to that, spouses who sign the postnuptial agreement, establishing the guidelines for a potential separation, feel much better about the future ahead. They have peace of mind, knowing that the mutually beneficial settlement is in place, securing both spouses from the negative and unpredictable consequences of dissolving the marriage. That allows them to be more positive and future-oriented, building a reliable and healthy relationship.
Brian Gilroy is the founder of BKG Mediation, LLC. He is a family law attorney and Florida Supreme Court-certified mediator practicing law in St. Petersburg, Florida.
Mr. Gilroy knows that thinking about property issues right after walking down the aisle is difficult. But he also counts on your openness to honest communication and a desire to build a strong and healthy relationship with your partner.
Postnuptial agreements are not only about finances – but they also aim to ensure a better and stress-free future for you and your spouse.
Brian is here to help you both from a legal and emotional standpoint.
Please reach out today to schedule your consultation.
