What a Florida Postnuptial Agreement May Cover
A postnuptial agreement can govern many aspects of a couple’s marriage, including:
- What assets and liabilities are to be considered marital and nonmarital, and how to divide them
- Protection of newly acquired property
- Management of business interests formed during marriage
- Rules for handling debts or financial obligations
- Decisions regarding income, savings, and investment structure
- Whether and how spousal support (alimony) will be paid in the event of a divorce
- How a specific inheritance, or anticipated inheritance, is to be treated
Why Married Couples Choose a Postnuptial Agreement
Major Financial Changes
- Inheritance: When one spouse receives, or expected to receive, a large inheritance.
- Income shifts: Often years into a marriage, one or both spouses’ incomes will have changed, sometimes dramatically, and the expectations surrounding how to handle, manage, and divide that income may be helpful.
- New investments: Sometimes a couple will obtain investments, such as rental property, traditional taxable investment accounts, or other vehicles.
Business or Career Developments
- Opening a business or acquiring ownership shares will often be benefited by a postnuptial agreement establishing the specific rights and responsibilities. Some partnership agreements require a postnuptial agreement to be executed to prevent a spouse from obtaining ownership interest in a business as a result of a divorce.
Rebuilding Trust After Relationship Strain
- Providing structure and clarity for both partners. Sometimes it can be helpful to have a “reset button” for the marriage, in which the assets and liabilities up to the present are divided up and new rules are put in place, so that the couple can focus on the emotional repair needed without having to worry about the financial aspects.
Planning for Children or Blended Families
- Ensuring certain assets remain reserved for family needs. In conjunction with proper estate planning documents, a postnuptial agreement can also work to secure assets for children of a prior marriage.
Requirements for a Valid Postnuptial Agreement
Florida statutes require a postnuptial agreement to be the result of full and honest financial disclosure. Even if a couple believes they are fully aware of each other’s finances, skipping the process of disclosing each other’s financial state and including a record of that, preferably in the postnuptial agreement itself, can render the agreement invalid.
While Florida courts review postnuptial agreements using the same principles for any other contract interpretation, if the terms of the agreement are so one-sided as to render it unconscionable, a court may decline to enforce its terms.
Any verbal arrangements or agreements must be contained in writing in the postnuptial agreement to be enforceable. A party cannot be coerced to sign the agreement or do so under duress.
While it is not a requirement that both spouses are represented by their own independent legal counsel, it strengthens the enforceability of the postnuptial agreement. One attorney cannot represent both spouses in the preparation and execution of a postnuptial agreement.
Child support cannot be waived in a postnuptial agreement. Any terms that require a person to perform an illegal act will also not be enforceable.
Postnuptial vs. Prenuptial Agreements: Key Differences
While the terms may be similar, even identical, a prenuptial agreement can only be signed before a couple is married, whereas a postnuptial agreement can only be signed after a couple is married. It is of paramount concern for both types of agreements that they are signed voluntarily. The timing of the prenuptial agreement in comparison to the wedding date will often be a relevant factor, whereas a postnuptial agreement may not be viewed as voluntarily signed if it occurs around an extreme emotional event.
Technically there is no requirement of financial disclosure for a prenuptial agreement, though it is strongly considered a best practice. However, Florida statutes require financial disclosure for a postnuptial agreement to be valid.
Sometimes it just comes down to timing where one type may be more advantageous than the other. If a couple cannot get a prenuptial agreement negotiated, drafted, reviewed and edited, and signed, with enough time before the wedding, it may be better to simply wait until after the start of the marriage to sign a postnuptial agreement instead.
When to Consider Creating a Postnuptial Agreement
If your incomes have significantly increased, your expectations for each other financially may also change and need to be formalized. While Florida law currently holds that an inheritance a spouse receives during a marriage is presumed to be non-marital unless actions are taken to make it marital, laws can change. Having a postnuptial agreement that makes it clear how inheritances are to be handled can provide peace of mind and financial clarity. If a new business is formed or expanded. Often a business will require owners to execute a postnuptial agreement that clarifies that the owners’ spouses will not obtain ownership in the event of a divorce.
Following major lifestyle changes affecting the marriage. If one party strikes it rich, if a couple has multiple children which changes the nature of the marital dynamic, or many other lifestyle changes, a postnuptial agreement can help to clarify expectations and responsibilities. When spouses seek a clearer financial roadmap. Sometimes one spouse feels that the financial dynamic has become lopsided, problematic, or simply unfair, and wants an agreement that helps them feel protected in the event of a divorce. Also, sometimes spouses end up with very different spending priorities and it can be helpful to outline with clarity how each’s respective incomes will be stored away and whether the other spouse has any right to it.
Common Misconceptions About Postnuptial Agreements
They only apply when a marriage is in trouble.
Often they can help to strengthen an already strong marriage by making clear what the expectations and responsibilities of each spouse will be going forward, instead of it being something both just figure out as they go, which can lead to misunderstandings and resentments.
They are difficult to enforce in Florida.
As long as the proper procedures and disclosures are followed, postnuptial agreements are commonly enforced in Florida so long as they are not unconscionable.
They are only necessary for high-income couples.
Postnuptial agreements can cover a host of issues that are not limited to just high-income couples, such as how incomes are handled, how assets are handled and titled, how alimony could be handled, and simply how the couple would like to manage their marriage overall.
They limit a spouse’s rights unfairly.
A postnuptial agreement allows a couple to create their own rules for their marriage, which meets their unique needs and priorities. Otherwise, the laws established by legislators in Tallahassee, which can change any time, will prevail.
They encourage separation rather than communication.
A postnuptial agreement is designed to remove ambiguities and uncertainties in a marriage, which encourages staying together rather than separating. It can often be a couple’s best chance to salvage their marriage if they are encountering troubles.
What to Bring to Your Postnuptial Agreement Consultation
- Documentation of personal and marital assets. A simple summary of your main assets and liabilities will suffice.
- Goals and concerns you want the agreement to address. This is paramount–the postnuptial agreement will cover whatever your goals and concerns are; often it helps to flesh these out with your attorney.
- Any previous legal or financial arrangements. If there is already a prenuptial or postnuptial agreement signed by the couple, you will need to provide that as it will need to be addressed and amended or replaced by the new agreement.
How Artemis Family Law Can Assist You
Negotiating the terms of the postnuptial agreement can be difficult. While we cannot provide legal advice to your spouse, it is common for both attorneys to discuss the terms of the agreement and ensure both clients understand what is being signed. A collaborative law process can also be used so that both spouses and their attorneys can have fruitful conversations together about the postnuptial agreement instead of having awkward, separate conversations.
We evaluate what matters most for asset protection and clarity. A postnuptial agreement can cover a broad swath of issues, or it can address a discrete issue.
From these conversations we tailor clauses that align with current marital and financial circumstances. A postnuptial agreement can contain many different kinds of terms, including some you may not have considered or thought of before. We draft terms based on the goals of our client to the best extent possible.
Schedule A Consultation
In order to ensure a postnuptial agreement is enforceable, is it important that an adequate process is followed, the terms are drafted to avoid ambiguity, and the signing follows Florida law. We focus on all three aspects of the postnuptial agreement process to ensure it compiles with Florida law.
