Postnuptial Agreement Florida
Dec. 30, 2020
Prenuptial and postnuptial agreements in Florida are a significant factor for almost every Florida divorce case. If one or both spouses have many assets before the marriage, the parties may decide to create a prenuptial agreement to protect the assets. It's a win-win for both parties.
However, what happens if one person or both obtain large amounts of money or property during the course of the marriage. If that occurs, they could choose to create a postnuptial agreement to tell the court how they want the assets to be treated in the event of a divorce.
When both parties have a valid prenuptial or postnuptial agreement, it takes much of the guesswork out of the divorce proceedings. These prenuptial and postnuptial agreements tell the court system how the parties want to divide the property and assets in the event of a divorce. However, postnuptial agreements and prenuptial agreements have to be executed and created based on Florida law. Otherwise, the agreements could be unenforceable based on Florida law. That requires the courts to divide the property as it sees fit.
The Purpose of Prenuptial or Postnuptial Agreements
It doesn't matter whether a couple chooses to enter into a postnuptial agreement or a prenuptial agreement in Florida. The parties did so for either of these two reasons:
Both parties wanted to be sure of how their marital property was going to get divided. This is a significant advantage of prenuptial or postnuptial agreements. In a sense, they create a measure of certainty in the event of a divorce. If they are drawn up correctly and executed properly, Florida law states that the court has to follow the agreement. The parties can then anticipate what assets are going to go to who.
One party wants to protect the property rights for his/her children. If one person has children already before the marriage was finalized, the prenuptial agreement or postnuptial agreement protects the property rights for those kids. For example, a prenuptial or postnuptial agreement prevents a stepparent from disinheriting a child if the natural parent dies. This is based on Florida law and can protect the children (minor or not).
A prenuptial agreement is sometimes called a premarital agreement. This is a contract entered into by both parties before they decide to legally get married based on Florida law. Such agreements are entered into primarily because one party has significant assets that he/she would like to keep if a divorce happens. Though family law is still involved in the divorce proceedings, these assets are set aside and cannot be fought over, according to Florida law.
For prenuptial agreements to be valid, they must:
Be Signed by Both Parties
This tells the court that both parties understand and have read the agreement. They both agree to everything written. If there aren't any signatures on the prenuptial agreement, the court cannot enforce it, according to Florida law. Instead, the court must conclude that the missing party's signature happened because they didn't review the prenuptial agreement or because they didn't agree to the terms in the prenuptial agreement.
Be in Writing
If the prenuptial agreement isn't in writing, it's not enforceable as a prenuptial agreement. According to Florida Law, the court cannot follow it. This ultimately means that if the two parties orally agree about how their marital property is going to get divided during a divorce, but they never get the prenuptial agreement in writing, the prenuptial agreement is void in the eyes of Florida law and the court system.
Be Followed by a Valid Marriage
Florida statutes and Florida law claim that a prenuptial agreement can only be enforced if the parties actually get married. This seems obvious to some, but it's surprising how many people create a premarital agreement and then never get married. If the parties don't marry, the prenuptial agreement cannot be enforced based on Florida law and the Florida statutes in place.
This makes sense because there would never be a divorce, and the courts wouldn't be responsible for dividing the marital property. However, even if the parties do end up getting married, the marriage could be determined as void. That means that a valid marriage never took place, so the prenuptial agreement must be thrown out and cannot be enforced based on Florida law. An example of this might be that one of the parties was already married (legally) to someone else at the time of the current marriage.
Contain Appropriate Provisions and Terms
The Florida statutes are extremely specific about what goes into a prenuptial agreement. Suppose a premarital agreement focuses on a subject or area that isn't permitted by Florida statutes. In that case, any prenuptial agreement between the parties about that subject has to be disregarded by the court in a family law courtroom. The provisions of the agreement can only address these topics:
Rights and obligations for property (who gets ownership of certain pieces, who is now responsible for debt payments on the property, etc.)
Who can control or use certain property
What happens to the property upon the death of a spouse or upon the separation/divorce of the parties
Ownership rights for life insurance policies
Other personal rights that don't violate the strong public policy or violate criminal laws
It's often seen as the best option for couples to create and sign a prenuptial agreement. The prenuptial agreement must be valid based on what was listed here. Typically, people should set aside time to contact a family law attorney because Florida family law is quite confusing.
Postnuptial agreements are quite similar to the prenuptial agreement in terms of contents and requirements. However, the main difference here is that the postnuptial agreement only gets entered into after both parties have gotten legally married. Since the spouses are legally married, Florida law imposes another condition before the court may recognize or enforce the postnuptial agreement. This includes full financial disclosure.
With that said, as part of this postnuptial agreement, both spouses have to affirm that they've been truthful and have accurately disclosed the complete financial situation to each other. That prevents one spouse from getting an asset windfall (winning the lottery, for instance) and hiding the information from the other spouse. Overall, the postnuptial agreement must be fair for both parties.
Setting Aside the Prenuptial Agreement or the Postnuptial Agreement
If a spouse presents the other party with a postnuptial agreement (or if a soon-to-be spouse asks the other to sign a premarital agreement), it's important that the provisions of the agreement are read and understood. This includes all the terms contained within. Suppose someone signed a prenuptial agreement or a postnuptial agreement, and the agreement is lawful and enforceable in Florida family law courtrooms. That means the court must enforce the agreement, even if it doesn't benefit the parties how they wanted. In a sense, one party could get a bad deal, but Florida statutes still claim that the postnuptial and prenuptial agreements are valid.
Consider Don and Lorna. They're getting divorced after many years of wedded bliss. Before they married, Don and Lorna created a prenuptial agreement. This agreement claimed that Lorna could get $300 in alimony every month if the couple got divorced. The amount was primarily based on Don's income at the time the agreement was created in Florida. However, during the marriage, Don ended up getting a significant raise. Florida statutes and Florida law make it to where the court has to honor the prenuptial agreement and the original amount of alimony. However, Lorna could have gotten more alimony if the agreement wasn't there. In other words, the court isn't going to protect a party from getting a bad deal.
However, there are certain Florida statutes that make it to where a court concludes that it can't enforce a postnuptial agreement or a prenuptial agreement. This usually happens because one person engaged in some bad conduct. The court can then set aside prenuptial agreements and postnuptial agreements in the case where:
The Parties Agree to Set Their Agreement Aside
In Florida, both parties can agree to set their initial prenuptial agreement or postnuptial agreement aside, but it must be done in writing. Along with that, the prenuptial or postnuptial agreement may be modified in some way. They both have to sign the new agreement so that the court can follow their wishes.
One Party Didn't Sign the Agreement Voluntarily
The provisions of the agreement aren't valid unless both parties sign the prenuptial or postnuptial agreement of their own free will. The law says that the nuptial agreement is only legal by Florida law if the act of signing the prenuptial or postnuptial agreement is voluntary. This includes if it is induced by various other promises, duress, or fraud. For example, if Don told Lorna to sign the prenuptial agreement and promises her some jewelry or a new vehicle, Lorna can argue that the prenuptial agreement wasn't signed as a voluntary act. Likewise, if Don doesn't allow Lorna enough time to review the agreement before it is signed, Lorna could claim that the signing of the agreement wasn't done voluntarily.
One Party was Fraudulent
Fraud happens when one party conceals the truth or lies about material facts. This includes when the defrauded party doesn't understand the situation or the reason for the agreement. For example, if Don would misrepresent his financial situation, and Lorna believes he owns fewer assets than he does or gets a lower income than he does, Don was fraudulent. If Lorna discovers this fraud after she's already signed the prenuptial agreement, she could have the court disregard the entire agreement because of his deception.
One Party was in Duress when Signing
The provisions and terms of the agreement have to be legal and enforceable. However, duress means that there is significant pressure to sign. This can include blackmail or the threat of violence. No contract is valid or legal in this situation. It can help to understand the benefits of both nuptial agreements, but the first thing is to make sure that no one was under duress when the contract was entered. Florida law often holds that if a person performs any action under duress, the action cannot be voluntary. Therefore, the postnuptial agreement or prenuptial agreement isn't enforceable. These issues can be avoided by making sure that each party has the right information, understands the terms and provisions, and is comfortable signing.
The Agreement Is Unreasonable
Just like with any other contract, the first thing the court is going to check is whether the terms and provisions are reasonable. Enforceable and reasonable don't mean the same thing. It can help to understand the benefits each party receives, such as alimony. Take all of these things into consideration first before signing. However, if the prenuptial agreement or postnuptial agreement has already been entered, the court may examine the facts and circumstances regarding the agreement to determine if it is unreasonable in itself.
The court might not protect a party from going into a bad deal, but it can take notice of any odd financial terms and provisions to determine if there might be issues. For example, if one spouse doesn't understand English well and no one assisted them with reading the terms and provisions, the prenuptial agreement or postnuptial agreement could be found unreasonable, and then it is not enforceable.
What to Do If a Spouse Wants a Prenuptial Agreement or Postnuptial Agreement
In almost every case, spouses would see many benefits of creating postnuptial agreements and prenuptial agreements. However, if one person is asked to sign either of these agreements, proceed with caution. Issues can arise if there isn't enough consideration about the financial aspects, such as alimony. There are other terms that have to be considered completely. It can help to talk with a family law attorney in Boca Raton, Florida. This can help both parties understand these agreements and what might happen during a divorce. For example, marriage assets can include life insurance and other consideration needs.
Those living in Tampa, FL, still have to abide by the law. However, legal advice from one of the most experienced divorce lawyers St Petersburg FL has to offer can ensure that the divorce goes smoothly. Both parties must understand what's in postnuptial agreements and how they work for them to be effective and enforceable.
It's often much easier to resolve issues when prenuptial agreements and postnuptial agreements are drawn up and understood before signing. Once the agreement is signed, it's highly difficult to convince the judge to set it aside. Keep these tips available if asked to sign postnuptial or prenuptial agreements:
Read Everything Carefully
Postnuptial agreements are essential in Tampa, FL. The law allows them to be used for a divorce. This means that everyone may benefit. However, it's easy to take a spouse's word regarding the agreements' contents. Setting aside the prenuptial agreement or postnuptial agreement solely on the grounds that a spouse listened to their partner and took them at their word may not be successful. It's important to take the time necessary to review the postnuptial agreement entirely. If someone is unsure about the contents of these agreements, ask for help. Consider talking to an attorney to get legal advice. They must be unbiased and can help with other aspects of the divorce, as well. Florida law is firm about certain things, such as alimony and life insurance and whether it was obtained during the marriage or before.
Make Sure the Postnuptial Agreement Says What It Should
Just because a partner is the one who asked for the prenuptial or postnuptial agreement doesn't mean that the other party has no say in what the agreement may indicate. Just like with any other contract, both parties are part of the contract and have a voice. Indicate specific terms or conditions. If either person isn't satisfied with their postnuptial agreements, concern should be raised. It's best to get an attorney to help with postnuptial agreements. They can ensure that each party is happy with the terms and understand what is going on.
Hire an Attorney
An attorney is there to explain what postnuptial agreements can do and offer. It's possible to get legal advice about the law in Florida. If there could be potential consequences of the provisions within the postnuptial agreement, the attorney can inform the client. Also, an attorney can provide suggestions for different provisions that may need to be in the postnuptial agreement to protect their client's rights.
Don't Sign Until Comfortable
These agreements are designed to protect the rights of each party. Florida has a strict law in place, so it is often best to hire an attorney in Tampa, FL. In the event that the spouses have issues that end in divorce, this binding contract gives each of the spouses the benefits they need. Just like with other contracts, postnuptial agreements are designed to provide support to the spouse in the event that the couple gets divorced. However, for it to be legal and valid, both spouses must agree.
Make sure to do a gut check before signing postnuptial agreements. Does this agreement 'feel right?' Please take into consideration how comfortable both spouses are about the financial information presented. Issues like alimony and other benefits are part of the contract and need to be considered.
Benefits of a Postnuptial Agreement
A postnuptial can save both people a lot of money. Divorces are costly, especially when lawyers are present. If both people want to fight over everything, it gets messy and takes a lot of money to finish everything. With a postnup, everything is already mapped out, so it takes less time and cash.
There's less stress. Divorces are tough and can cause mental and emotional anguish. Each party is sad about the loss of the marriage and may feel defeated because they couldn't 'make it work.' With a postnup, it's less stressful and can make the process go smoothly to avoid unnecessary headaches and pain.
When an attorney is used, there's a safe place to discuss the future and insecurities. Often, a postnup is created before there are issues with the marriage. It's like insurance to protect against something that might come in the future.
When to Get a Postnuptial Agreement
Postnuptial agreements can be entered into at any stage of the marriage. In the event of an impending divorce, it's important that the couple understand the benefits and which issues a postnuptial agreement would assist with. Like other contracts, this one is legal and binding.
According to Florida law, the couple has to be married already before they can create or sign a postnuptial agreement. Inside the agreement should contain information about spousal support, such as alimony. As with a prenuptial, child support isn't often included. Though it can be legal, it must benefit the child and be in their best interest.
The couple is likely to require legal assistance in the event of a divorce with children. The law also uses postnuptial agreements to deal with property division. An attorney is not required by law to make this document legal. However, it's often better for the couple to hire an attorney to go through everything. If something is unclear or doesn't feel right, separate attorneys can be obtained to read through and make changes to the postnuptial agreement. This may be ideal for the couple now and in the future.
An attorney can determine if a postnuptial is necessary and beneficial to both parties in the eyes of the law. These are the times when the couple should consider a postnuptial agreement:
Kids from another marriage - Each case is different, but children from another marriage need to be protected. If the couple has kids together, it prevents everyone from fighting an uphill legal battle.
Protect the assets - Divorce can easily get messy, and to avoid a drag-out knock-down fight, the postnuptial agreement can lay the groundwork. The law gets involved to determine how things are split up, and the couple agrees to it, so there aren't hassles and headaches later. Florida courts can go through the agreement and know which assets and debts are whose. Since both people agreed before the divorce, this is legally binding.
A spouse is in trouble - If one person develops a drug addiction, gets arrested, or has a gambling problem, the other person is on the hook to pay back the money based on Florida laws. However, with a postnuptial agreement in Florida, the couple can agree on who pays for what. Just remember that an attorney can only do so much. In Florida, both people have to want the postnuptial agreement.
Who Shouldn't Get a Postnuptial
A postnuptial isn't for everyone. If one person brings in much less money than the other, a postnup might not be ideal. The person making less could end up settling for less than what they could have got in a divorce in Florida.
The law is quite clear in Florida, and each case is different. It's nearly impossible to list every reason to get and not get a postnuptial agreement. Therefore, it might be better to consult with a Florida attorney before divorce is even thought of.
Those who are the breadwinner of the family or making significant amounts of money may want a prenup. However, if they didn't get it before the marriage, a postnup might be the right course. Likewise, women who make more money in Florida should consider postnuptial agreements.
Florida residents have the right to include a clause as to why the postnuptial is being created. This helps the Florida court system understand the motives if the postnuptial agreement comes about during a divorce. Is child custody the reasoning, or is a spouse in trouble? If the issue is temporary, the postnuptial may not be valid or necessary anymore.
For most couples, the idea of the marriage not working out is a scary one. No one wants to change that much, but sometimes, things happen. Florida residents who are going through a divorce should consult with an attorney. It's in their best interest to understand what's going to happen and how the Florida laws work.
If divorce isn't imminent yet, postnuptial agreements are an excellent idea. They are designed to protect the assets, property, and everything else regarding the marriage. This also pertains to things received before the wedding. Florida has many complicated rules in place. It's often better to work with a law firm. Call us to speak to an attorney about your case. We make sure to work for our client's rights.
Hiring an attorney is a big decision, and it isn't one that should be taken lightly. Contact us to help set up a postnuptial agreement or a premarital one. We can help you decide which is the best course of action and what should be included. Those who are going through a divorce need someone on their side. Choose BKG Mediation to help with this situation and many others. It's our goal to make the transition from married to divorced an easy one. The process can be smooth when both parties agree. If a postnup is already part of the situation, we can make sure everything goes well.