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Prenuptial and Postnuptial Agreements
If wedding bells are ringing in your future, you may be considering a prenuptial (premarital) agreement. Once a concept only heard about in celebrity tabloids, prenups have gained popularity with ordinary brides and grooms in recent years.
These binding contracts are used to protect high-value assets or business interests in the event of a divorce. Prenuptial agreements must be negotiated and signed prior to a wedding; both parties must have time to consider the terms, properly understand the effect of the agreement, and, ideally, have the contract reviewed by an attorney. This also protects any of the parties later claiming that they signed the contract under duress.
A postnuptial agreement is a contract between spouses that is signed after they have been married. Except for timing, it is very similar to a prenuptial agreement; however, motivations for signing a postnuptial agreement differ in some cases. Here are some reasons that a couple may choose to sign a postnuptial agreement after they get married:
- In some cases, the couple intended to do a prenup, but ran out of time to negotiate, so they decided to do a postnuptial agreement instead.
- One party has been unfaithful, so they use a postnuptial agreement as a tool for forgiveness: “If I forgive you and stay in the marriage, I want X, Y, Z in the event that we divorce.”
- The couple is in the process of estate planning, and wants to set aside specific assets for their children. This is especially true when individuals have children from previous relationships.
- The couple wants to deal with the major financial situations in their marriage, so both parties feel their needs are being met.
- One party may be considering divorce, so they want to have a postnuptial agreement before they file.
Challenging a postnuptial agreement is sometimes easier than challenging a prenuptial agreement, because it happens after marriage.
Maybe you, your spouse, or your fiancé or fiancée are considering a prenuptial or postnuptial agreement. Maybe you are trying to fight one in the case of divorce. If so, speak to an attorney with experience crafting these agreements and arguing these cases as soon as possible. For a free consultation with a skilled prenuptial and postnuptial agreements attorney in the St. Petersburg area, call Khonsari Law Group at (727) 269-5300.
What Are Florida’s Prenuptial Agreement Requirements?
Florida’s Uniform Premarital Agreement Act lays out the requirements and procedures for prenuptial agreements. There are four main requirements for the contract to be legal:
- The agreement must be in writing. Oral prenuptial agreements are not enforceable.
- The agreement must be signed voluntarily by both parties.
- A notary public must notarize the agreement. Most prenups address the division of assets, including real property. Under Florida law, any contract that includes real property requires notarization with two witnesses.
- You must get married for the agreement to go into effect.
What Issues Will a Prenuptial Agreement Address?
When a couple is negotiating a prenup, there are several issues that may be addressed depending on what is important to each party. The idea of the agreement is to create some equal footing in the marriage, and at the very minimum, make sure that both parties leave the marriage with what they brought to it in terms of property. It is important to note that the State of Florida defines property as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.”
Items that may be included in a prenuptial agreement under Florida law could include:
- Rights and obligations of each party in regards to any property owned individually or acquired jointly.
- Right to buy, sell, use, transfer, exchange, mortgage or otherwise manage and control property.
- Distribution of property upon divorce, death, etc.
- The establishment, elimination, modification, or waiver of spousal support or alimony.
- Estate planning, including the making of a will or trust, or arrangements to carry out last wishes
- Who gets beneficiary rights of a life insurance policy in the case of one’s death
- Which law governs the construction of the agreement
- Any other issues with accompanying rights and obligations (as long as it doesn’t involve criminal activity).
What Makes a Prenuptial Agreement Unenforceable?
In the event of a divorce, one of the parties may try to challenge the prenup. For the court to declare that a prenuptial agreement is void or unenforceable, the party trying to invalidate the prenup must prove one of the following:
- They did not sign the agreement voluntarily, such as under duress or coercion.
- The agreement was fraudulent or overreaching.
- The other party did not fully disclose their property and financial obligations.
- They did not voluntarily and expressly waive their right to receive full disclosure.
- They did not have, nor could they reasonably have had, knowledge of property and financial obligations of the other party.
- If the elimination or modification of spousal support causes one to seek public assistance, such as food stamps, at the time of divorce, the court may require the other party to pay support so they are not eligible for assistance.
- A court may rule that the agreement is unconscionable. This refers to the idea that the terms of the contract are so one-sided and unfair, enforcing the agreement would be improper.
- If the marriage is void, the contract was never executed, so it is unenforceable. Although this is rare, it could happen if one party was previously married and never divorced prior to marrying their new spouse.
What Are Florida’s Postnuptial Agreement Requirements?
Florida’s Uniform Premarital Agreement Act explains the requirements for prenuptial agreements, but there aren’t any Florida statutes that specifically speak to postnuptial agreements. Instead, the requirements for postnuptials come from contract law, property law, and estate law. Here are the basic requirements for a postnuptial agreement in Florida:
- The agreement must be in writing; oral postnuptial agreements are not enforceable.
- Both parties must sign the agreement voluntarily.
- Most postnuptial agreements address the division of real estate and address the division of assets if one partner dies. Both situations require that the contract is notarized with two witnesses.
What Issues Do a Postnuptial Agreement Address?
When a couple puts together a postnuptial agreement, several issues may be covered depending on what is important to each party. These issues are identical to what you would find in a prenuptial agreement. For the purposes of a postnuptial agreement, you should know that Florida statutes define property as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, tangible or intangible, including income and earnings, both active and passive.”
A postnuptial agreement may cover:
- The rights and obligations of both parties in terms of any property.
- An agreement on each party’s right to buy, sell, transfer, use, etc. property.
- Division of assets in the case of divorce, death, etc.
- Division of debt in the case of divorce.
- Estate planning, such as making a will and arrangements for last wishes.
- Beneficiary rights of life insurance policies.
- College expenses for children.
- Child support and child custody.
- Custody of family pets.
- An agreement about spousal support or alimony in the event of a divorce, including an agreed amount, complete elimination, modification, or waiver.
- Some postnuptial agreements include fidelity clauses—if a spouse cheats, the agreement specifies ‘punishments,’ such as no spousal support or giving up some other kind of property.
What Makes a Postnuptial Agreement Unenforceable?
When a marriage is dissolved or death occurs, one of the parties might challenge the postnuptial agreement. A court will declare the agreement unenforceable in the following situations:
- One of the parties signed involuntarily while being coerced or under duress, or the agreement was fraudulent or overreaching. This is the same stipulations as a prenup, but a Florida Supreme Court ruling (Casto v. Casto) affirmed this standard for postnuptial agreements as well.
- They did not voluntarily and expressly waive their right to receive full disclosure.
- The agreement cannot cause one to seek public assistance because of the elimination of spousal support or alimony. The court may require the other party to pay enough money to remove their eligibility for social welfare programs.
- If a court finds that the agreement is extremely unfair (unconscionable), they will not enforce the contract.
- If the marriage is fraudulent, as in the case of bigamy, the court will not enforce the contract.
How Much Will a Prenuptial or Postnuptial Agreement Lawyer Cost?
Drafting an enforceable contract or challenging a prenup or postnup is an investment in your future financial security in the event of divorce or death. The cost to have an attorney help is minor compared to the rights such contracts protect. Typically, you will be charged a flat fee for specific paperwork, and billed hourly for any extras. Most law firms offer free consultations; take advantage of this time to discuss the terms of your prenup, and what an attorney can offer you in return.
If you have significant assets or own a business, signing a prenuptial agreement before getting married or a postnuptial agreement afterward may be a lifesaver. Choose a skilled postnuptial agreements lawyer—otherwise, you may find yourself spending considerably more to defend the agreement later on. These contracts are not places to cut corners, and using a one-size-fits-all onine prenup or postnup template can jeopardize your assets.
Our skilled attorneys have experience drafting, negotiating, defending, and fighting prenuptial and postnuptial agreements. Regardless of your goal, a knowledgeable professional can guide you through the process, and ensure your rights are properly protected. Contact Khonsari Law Group in St. Petersburg for a free consultation at (727) 269-5300 or write to us online.