Defining a Postnuptial Agreement
A postnuptial agreement is a contract between two people who are married (or who have entered into a registered partnership), which is made after the couple has been married. Like a prenuptial agreement, a postnuptial agreement can address many aspects of a couple’s life. It might help to think of postnuptial agreements as essentially an extension of prenuptial agreements.
When couples are engaged, they might really have more time and freedom to address certain issues. After all , no marriage exists. However, not all couples meet or have a good opportunity to enter into a prenuptial agreement. More importantly, a premarital agreement may not seem like a priority while in the throes of wedding preparation. On the other hand, a postnuptial agreement may help to preserve some of the benefits of a prenuptial agreement, to be determined after the couple has experienced the reality of marriage.
Requirements Under Floridian Law
To be valid in Florida, a postnuptial agreement must be in writing and signed by both spouses. The agreement should be carefully crafted by an attorney to ensure it conforms to edicts of Florida’s Uniform Premarital Agreement Act and Florida law. While many postnuptial agreements are either not in writing or lack the requisite disclosure of income and assets, to be enforceable they should comply with the disclosure requirement found in F.S. 61.079(3), which provides that "each spouse voluntarily and expressly waives any right to disclosure of any economic information from the other spouse beyond the disclosure the spouse actually receives."
Where postnuptial agreements typically fail to satisfy Florida law is on the issue of fairness. Florida does not require postnuptial agreements to be fair – merely that they be reasonable at the time formed. Under the Acts of the Florida legislature, an agreement formed when spouses were relatively close to the marriage, such as during the honeymoon, should be viewed with more scrutiny under the standard of review for postnuptial agreements than an agreement entered into after a longer period of a successful marriage. F.S. 61.075(8)(c) provides in relevant part that a trial court should consider the fact that "the spouse did not receive a fair disclosure of the earnings or property of the other spouse when the agreement was executed" when determining whether to enforce a postnuptial agreement.
Perks of a Postnuptial Agreement
A better understanding of each partner’s expectations and needs
Protection for assets gained during the marriage
Protection for assets owned prior to marriage
Protection for family assets
Financial clarity you may not otherwise have
The ability to provide an alternative remedy to divorce
Preserve family property in case of separation or divorce
Protection from a spouse’s debts
The ability to define marital property and gifts
The ability to protect the inheritance of children from a prior marriage
A tool for estate planning if both spouses are older than 18
Typical Stipulations of Florida Postnuptial Agreements
A conventional postnuptial agreement often comprises provisions regarding the division of property or debt in the event of a divorce, the number of alimony payments, and the settlement of child support. Standard clauses may provide that the parties maintain their separate properties and debts, or that they share or divide jointly owned property or debt in the event of a divorce. Standard clauses in regard to alimony may provide that a particular sum of money will be paid over a specific duration with the goal of ensuring a comfortable standard of living after divorce. These terms and conditions are mutually agreed by the parties who sign the agreement, and they may not be changed without mutual agreement.
The Florida statute governs ten areas of provision in a typical postnuptial agreement:
(A) the parties’ right to maintain separate accounts:
(B) the management of the parties’ property, including any property acquired after the previous judgment of dissolution of marriage was entered as well as any property acquired after the date of the agreement that is to be considered marital property;
(C) the right of either spouse to make gifts or disposition of property;
(D) the manner of managing, placing in trust, and investing the parties’ property;
(E) the disposition of life insurance policies;
(F) the parties’ right to remaining unmarried before remarrying within a specified duration of time;
(G) the manner of payment of spousal support;
(H) the sharing of debts and liabilities, including which spouse is responsible to satisfy them in the event of the parties’ divorce;
(I) the division of property in the event of the parties’ death;
(J) any provision that would apply in the event of divorce, annulment, legal separation, or death;
positive and negative choices on the parties’ behalf may be made within the agreement and the choice of specific items of property or category of assets should be defined.
Establishing a Postnuptial Agreement
Just as you might do for a prenuptial agreement, first consider seeking legal advice. Even if you don’t intend to follow the rules, having the advice of an experienced family law attorney will assure you that you are following Florida law in preparation of your agreement and will also provide an extra layer of protection should one spouse later contest the validity of the agreement.
Next, and this is the part that marries the old advice with the new, recognize that there is an opportunity in the suspended divorce to have necessary, and potentially bitter, discussions about dividing and managing your martial assets. In other words, view this simply as a process that will reduce the chances of a 50/50 division should the pending divorce become a reality.
With the help of your attorneys, outline the provisions you would like to see included (both of you should have a say in what’s included and what isn’t). Consider the importance of keeping your agreement simple and straightforward. In fact , you may even find it helpful to enlist a mediator who can help you create a workable agreement that addresses both of your needs and concerns.
Finally, like all contracts, your postnuptial agreement should include a clause providing that no matter how much you may fight in the future, you are both bound by the terms outlined in the contract. In addition to the terms, the agreement should contain the full names of you and your spouse, your current addresses, your married name (if applicable), the property that is subject to the agreement, the date and county where it is made, and the signatures of you, your spouse, and two witnesses. The agreement must be in writing, signed, and notarized. The notary will confirm that you both signed the agreement of your volition and that you were both in the room during the signing.
Affirmative Action and Issues to Contemplate
Enforceability of postnuptial agreements is one of the primary issues that arise when a spouse reaches out about whether an agreement is defensible in court. In a recent divorce appeal, Helfen v. Helfen the Florida 4th District Court of Appeals found that the terms of a postnuptial agreement (aka marital settlement agreement) were not enforceable because the parties had not voluntarily entered into a contract; specifically, because the wife did not read the 35 page document or understand its contents (but also had no particular cognitive limitations). The issue of enforceability was not litigated in that case, but it brings up several challenges to be aware of as an either party considering a postnuptial agreement or making inquiries of its strength. In addition to enforceability, whether a postnuptial agreement will remain valid or if it can be overturned depends on various factors, including: During the process of negotiating the terms and drafting, an experienced attorney can help a client address factors that may affect enforceability. This is not an exhaustive list, and some challenges cannot be anticipated or identified until the time of enforcement. Finally, individuals entering into the postnuptial agreement should consider the limitations and threats to a postnuptial prior to drafting an agreement. Examples include: This is not an exhaustive list. The factors to consider depend on the nature of the relationship and the particular needs of the spouses.
Altering or Annulling a Postnuptial Agreement
Florida postnuptial agreements can be modified or even revoked under certain circumstances. The spouses who entered the contract have the right to amend these contracts at any time. Should both spouses agree to a new arrangement, an amendment can be drafted and signed by both parties.
Alternatively, if the couple ultimately decides to revoke the agreement and completely separate all of their assets, they can do so with the application filed in court. In this case, both partners will have to sign a petition that is presented to a judge. This does not have to take place in a litigation court, so the couple can avoid an expensive and time-consuming legal process.
One spouse may also petition to override the postnuptial agreement. If the court finds that the agreement was obtained using poor communication, fraud or undue influence, it can be invalidated. For instance, if you were bullied into signing the contract by your former spouse, the court may decide that the agreement is null and void.
Engaging a Family Law Expert
It is crucial for parties to a postnuptial agreement to consult with an experienced family law attorney when drafting or revising an agreement. A skilled lawyer will inform you about the specific requirements for a valid Florida postnuptial agreement, which has to be in writing and executed by both parties. The agreement also must be entered into voluntarily, the parties must fully disclose their respective debts and assets, and the agreement must be fair and reasonable . An agreement is deemed fair if all parties have disclosed to each other their assets and obligations, not necessarily if the asset division is equal as concerns the income of each spouse. An experienced family law attorney can help ensure your postnuptial agreement complies with all applicable laws and will protect your rights in the event of a divorce. An attorney with experience in handling postnuptial agreements also may be able to advise you on whether you need to revise an existing agreement.