In today’s blog post, we discuss the two types of nuptial agreements: prenuptial and postnuptial to help readers better understand what these agreements mean, what they protect, and when it is appropriate to enter into one.
Prenuptial agreements, also called “premarital agreements” in Florida, are contracts between prospective spouses that determine how certain issues such as alimony and property division are treated during a divorce. The agreement is essentially a trade of the act of marriage for certain financial terms in the contract.
A premarital agreement is not enforceable (invalid) in Florida if it can be proven that: The party did not execute the agreement voluntarily; Agreement was entered into as a result of fraud, duress, coercion, or overreaching; or
There are four primary requirements for a valid prenup in Florida:
1: The agreement must be in writing.
2: The agreement must be notarized.
3: The agreement must be entered into voluntarily by both parties.
4: There must actually be a marriage, upon which the agreement takes effect.
Prenuptial agreements do not expire unless they have a specific clause in them stating the agreement expires after a certain length of marriage (very uncommon).
Couples use prenuptial agreements to determine the following issues:
✔️Each spouse’s ability to manage or control property during the marriage
✔️ How the couple will divide their property in the event of a divorce, death, or other events
✔️ Whether one spouse will pay the other alimony during a separation or divorce, and if so, the alimony amount and duration
✔️ What happens to each spouse’s retirement plans or pensions
✔️ What happens to the proceeds of any life insurance policies
✔️ Whether either spouse is required to write a will to carry out the terms of the agreement
If a judge believes that the prenuptial agreement is extraordinarily unfair, he or she may decide that the agreement is “unconscionable.” Just because the agreement leaves one spouse with much more wealth than the other doesn’t mean that the court will find the agreement unconscionable; judges find agreements unconscionable only in rare circumstances. Also, a court finding a prenuptial agreement unconscionable isn’t enough to void the agreement. The challenging spouse must prove both that the agreement is extraordinarily unfair and that he or she didn’t receive a proper financial disclosure.
Most marital attorneys advise a complete review of you Prenup every few years to keep up with changing circumstances.
Florida law requires full and complete financial disclosure from all parties to a postnuptial agreement. Postnuptial agreements can dictate how assets & liabilities are divided in the event of a divorce. Additionally, the agreement can control the terms of alimony in the event of a future divorce
In Florida, a postnuptial agreement needs to be in writing, signed by both parties, and comply with the law. The agreement also must also reflect that both parties have truthfully disclosed the state of their financial affairs to one another before entering into the contract.
Under Florida law, a court will not enforce a postnuptial agreement that is obtained by fraud, duress, coercion, or overreaching. A court may reject an agreement that appears to be unfair to a party. Drafting an effective and enforceable post-nuptial agreement requires a complete understanding of the law and the circumstance of the parties.
Marriage is an emotional and financial partnership. Postnuptial and prenuptial agreements are becoming increasingly popular with each generation as they enter into marriage with already established financial stability.
Contact Brodie & Friedman, P.A. today to discuss consultation—even though we may never need to take your case to court, our ability to do so from a position of strength brings immeasurable influence to negotiations across a range of disputed marital issues.
With over 30 years of combined experience, Jason Brodie Esq. and Joshua Friedman Esq. will guide you toward realistic goals and provide committed advocacy toward achieving them. They are known throughout South Florida for dedicated client service, tenacity, and success in complex divorce litigation involving property division, child custody, and spousal support.
To get a better understanding of the qualities our reputation is built on, contact our office in Boca Raton to schedule your initial phone consultation (561) 392-5100