Understanding postnuptial agreements and how the state of Florida approaches them
Usually when a couple gets married, they are not expecting to separate later on in the future. However, unfortunately, too many divorces do end in divorce. In the US, the national divorce rate for first marriages is 50% and it doesn’t improve from there with 67% of second marriages and 74% of third marriages ending in divorce. While it is common to hear about a couple entering into a prenuptial agreement prior to marriage, you don’t often hear about couples entering into a postnuptial agreement after being married. However, postnuptial agreements are an option to couples who realize after being married that they want to enter into an agreement on how financial assets and affairs will be handled. Here is what you should know about postnuptial agreements:
What is a postnuptial agreement?
A postnuptial agreement is similar to a prenuptial agreement because it is an agreement on how a couple’s assets are to be divided and the amount of spousal support one party will pay to the other, if any, if the couple separates or the marriage ends. Postnuptial agreements are a relatively new concept in the legal industry as most states did not begin to recognize them as enforceable until the 1970s when divorce became more common and states began to enact “no fault” divorce statutes. Some of the most common topics covered by postnuptial agreements include:
- How the couple’s property and assets will be divided
- How the couple will split the responsibility of insurance policies
- Which assets and property will be considered marital and non-marital assets and property
- How the couple will divide the responsibility of financial debts such as mortgage loans, car loans, credit card debt, etc.
- How the couple will divide the responsibility of savings such as retirement and children’s college savings funds
- Whether one spouse will pay the other spouse alimony and for how long or whether one spouse waives the right to future spousal support from the other spouse
- Whether one spouse will pay the other spouse child support and how the couple will divide child custody and parenting plan responsibilities (within the state’s limits)
- How assets will be passed on if one spouse passes away during the marriage
It is important to know that the state of Florida does have limits and restrictions as to what a couple is allowed to agree to and include in a postnuptial agreement. If the terms within the postnuptial agreement do not meet these requirements, the court may set aside part or all of the agreement. Because of this, it is best to have an attorney draft and review your postnuptial agreement.
Is a postnuptial agreement right for you?
While it may be uncomfortable to think about making an agreement as to what will happen if you decide to end the marriage in the future, it can also be a wise decision for many people to protect themselves if the marriage were to end in the future. Anyone considering entering into a postnuptial agreement should always have a skilled family law attorney who has experience working with postnuptial agreements review the entire agreement before you sign anything. Even if your spouse already has a lawyer who drew the agreement up, you should have your own attorney review the document before you agree to it. Ultimately, you want to make sure anything you agree to will be in the best interest of both you and your family.
Are postnuptial agreements enforceable in Florida courts?
Florida courts will uphold any postnuptial agreement they determine meet the legal requirements and limits of the state. They will set aside any agreements they find to have been made due to fraud, misrepresentation, duress, coercion, or deception. The legal requirements for a postnuptial agreement to be considered valid in the state of Florida include:
- The agreement must be documented in writing
- The agreement must have been signed by both parties voluntarily
- Each party must have informed consent before signing the agreement (“informed” means there was full financial disclosure between the parties)
- The agreement needs to be reasonably fair to both parties
If the court feels the postnuptial agreement is too one-sided or that one party did not have the agreement reviewed independently by their own attorney, they will likely look at the agreement with more suspicion. To ensure your postnuptial agreement is written in a manner that will be upheld by a Florida court, you should have it drafted by a skilled family law attorney who can make sure it meets each requirement of the state.
Experienced Tampa family law attorneys guide couples through the postnuptial agreement process
If you and your spouse are considering entering into a postnuptial agreement, contact the skilled and experienced family lawyer, Michael C. McGinn, P.A. for your FREE initial consultation. Mr. McGinn has a wealth of knowledge when it comes to Florida family law cases and is prepared to protect and maximize your legal rights and interests. Call us at 813-374-0353. Mr. McGinn is licensed in all Florida courts; he frequently handles family law cases in Hillsborough, Pinellas, Manatee, Pasco, and Polk Counties, and has occasionally handled cases outside of the immediate Tampa Bay Area as well.