What’s a Postnuptial Agreement?
A postnuptial agreement is an agreement executed between two spouses after their marriages, which regulates their financial and property relationship in the event of a divorce. A postnuptial agreement serves to protect both spouses; it allows a couple to modify or eliminate state requirements, and protects both parties from courts or judges who have no knowledge of their unique circumstances .
Critical to any postnuptial agreement is its ademption (or separate form) from a prenuptial agreement. If a postnuptial agreement is prepared in an atmosphere of mutual agreement and understanding, then it can help a couple create clear expectations about their future if their marriage deteriorates. A postnuptial agreement is generally not recognized in Florida. Nevertheless, such agreements are legally enforceable under certain conditions.
Requirements of a Postnuptial Agreement in Florida
To bind both parties, a postnuptial agreement must be in writing and voluntarily executed by both spouses. It is not enough to have a court approve such an agreement after both parties signed it. Once executed, the postnuptial agreement can be submitted to a court for enforcement or modification, but it is the actual execution of the document that matters. Because the family courts in many states have been granted equitable powers over marital matters, courts can approve the terms of a postnuptial agreement once signed by both spouses unless it violates applicable laws. However, under Florida law, a circuit court will not enforce, or modify, a postnuptial agreement where a spouse has not voluntarily executed the agreement. The transfer of property or other consideration to their spouse at the time of execution cannot be the sole or primary consideration of the illegal agreement. All postnuptial agreements are void if they are against public policy, or violate the law.
Advantages of a Postnuptial Agreement
Postnuptial agreements have several benefits. They allow the parties to provide themselves some financial protection in the event of divorce, and they can outline how assets will be managed in a divorce. Additionally, an agreement can prevent protracted litigation over property, debts, custody and other issues and how they will be divided should a divorce occur.
A postnuptial agreement can also clarify the responsibilities of each person in the marriage for property acquired after the agreement. For example, if you want a particular asset to belong to you, you can specify that it will be subject to equitable distribution or not. When it comes to certain types of agreements, such as a waiver of alimony, Florida law requires that the person who could benefit from alimony has had independent legal counsel. An agreement made by each spouse or partner is enforceable even if the partners are still living together.
Typical Provisions In a Florida Postnuptial Agreement
When we use the term "postnuptial agreement," a typical agreement would address the division of assets and liabilities in the event of divorce or death. These agreements may also establish spousal support in the event of divorce. But, given the nature of the document, they rarely (if ever) address child-related issues (i.e. time-sharing and parental responsibility). For purposes of the sample document we have provided in the Downloadable PDF, we will address only the adult issues addressed in typical agreements. Accordingly, most of the clauses in the postnuptial agreement section of our download will address the following topics; General terms. – Parties herby acknowledge the terms of this Agreement are not the result of fraud or duress, and they enter in freely. Disclosure of Assets and Liabilities. – Parties hereby agree to cooperate fully and complete a joint financial affidavit for both parties. Governing Law. – This document shall be construed in accordance with federal and state laws and the laws of the State of Florida. Time of the Essence. – The parties agree that "time is of the essence" with respect to their respective obligations. Waiver of Trial by Jury. – The parties hereby knowingly and voluntarily waive any right to trial by jury. Attorney Fees and Costs. – In the event of a dispute arising under this Agreement the prevailing party shall be entitled to recover its attorney fees, costs, and litigation expenses from the other party. Parties shall be equally responsible for all court costs presentment of this agreement. Agreement shall survive divorce. The parties agree that this Agreement shall survive any potential divorce in the future. Specifically, the parties agree that this Agreement is not intended to be a marital settlement agreement as envisioned under Florida Family law. Equitable Distribution Schedule. The parties agree to attach an equitable distribution schedule as an exhibit to this Agreement. Parties further agree to abide by the terms contained within this equitable distribution schedule. Spousal Support. The parties herby agree to waive any and all rights to seek and collect spousal support from one another (support awards may not be limited by parties). Retirement Accounts. The parties agree that the following retirement accounts are their own separate assets (a) Individual Retirement Account (XXX-XX-1234); (b) x. Roth IRA (XXX-XX-1234; (c) 401K (XX-XX-2345); and (d) Pension from ABC Corporation. Business Interests. Parties agree that the following business interests are the sole and separate property of Party A (a) Business; and (b) LLC (Name).
How to Create a Postnuptial Agreement in Florida
Although negotiating the terms of a postnuptial agreement often proceeds without the assistance of legal counsel, it is still strongly recommended that each party hire their own attorney to represent their interests. A Florida postnuptial agreement is a contract which is subject to the same Florida Statutes (Section 668, Florida Statutes) which govern the negotiations for pre-nuptial agreements. Those statutes ensure that the following terms are part of any postnuptial agreement:
- (1) Each party to the agreement has entered into the agreement voluntarily.
- (2) The agreement is in writing, is signed by the parties, and is witnessed.
- (3) Each party was provided a fair and reasonable disclosure of the property or financial obligations of the other party.
- (4) The agreement does not disrupt an existing child support award or a pending claim for child support.
- (5) Neither party shall be under duress or undue influence. Signs of duress or influence include:
(a) A significant disparity of bargaining power between the parties, e.g. a medical doctor marrying a nurse.
(b) One spouse not being given time to consider the merit of the proposed agreement, e.g. spouse is presented the agreement just before the lawyer’s office is about to close.
(c) One spouse being represented by an attorney while the other spouse is proceeding "pro se."
(d) One spouse negotiating the agreement without consulting their attorney .
(e) One spouse refusing to disclose financial information or improperly obstructing the other spouse’s access to the information.
(f) One spouse not being provided an opportunity to review the agreement and consult with their attorney before signing the agreement.
(g) One spouse’s attorney failing to inform the client of the legal consequences of the agreement.
(h) Both parties being represented by the same attorney.
(i) One spouse pressuring the other to sign, without advising that the agreement is legally binding.
(j) One spouse committing fraud or making false promises to the other spouse.
(k) One spouse withholding evidence of earned or unearned income, e.g. opposing spouse withholding information of large gambling winnings.
(l) The parties having an abusive or threatening relationship, or one spouse using their physical advantage to control the other spouse.
(m) The spouse not having the mental or physical ability to understand the agreement.
Each one of these signs would be enough to have the agreement set aside or declared null and void and unenforceable. The simplest way to avoid these issues is to have each party represented by independent attorneys.
The next issue to discuss is whether the postnuptial agreement is enforceable or voidable. A Florida postnuptial agreement, even if it contains all the Statutory requirements, may be unenforceable if it contains provisions (or lack of provisions) which render the agreement voidable.
Creating a PDF Download of a Postnuptial Agreement
Parties to a Florida postnuptial agreement may find it useful to have a template as a tool for drafting, negotiating, and finalizing their agreements. This section provides a short overview of downloading the postnuptial agreement template; instructions for using the template in Florida (with a Florida focus); and a summary of steps taken after the completion of the postnuptial agreement. The postnuptial agreement template is available as a free, downloadable PDF (available at the end of this section).
When You Need to Update Your Postnuptial Agreement
The same way you would reevaluate your home insurance or investment portfolio every few years, you should consider the possibility of updating your postnuptial agreement. If you have been married for a few years and have not gotten around to your postnuptial agreement yet, it is ideal that you do so within the first five years of your marriage. However, if it has been even longer than that since the last time you touched your postnuptial agreement—or if you never had one at all—then you need to start evaluating the state of your finances within a postnuptial agreement.
As circumstances change over the decades, this document will have to be reviewed to protect your interests and those of your family. Florida law will require postnuptial agreements in order to determine a fair outcome regarding marital property and spousal support, including the division of assets and ensuring appropriate financial support from one spouse to another. Some of the reasons why you will want to reconsider revising your postnuptial agreement are:
- If you relocate or make plans to relocate
- If your earnings increase
- If you or your spouse retires
- If one spouse is planning to return to work after an extended period of time
- If you experience a major financial event, such as an inheritance or separation from an estate
- If one spouse starts a business
- If one spouse requests more or less spousal support or alimony
- If you purchase a second home
- If your family has expanded significantly
- If your family size diminishes significantly through divorce or death
- If your children grow up and leave the nest
A properly executed postnuptial agreement can be words of wisdom for spouses who want to ensure that if one of them experiences financial difficulties or misconduct, the other will be protected. Postnuptial agreements, unlike premarital agreements, can be entered into after the marriage, which is ideal for couples who feel the pressure of being newlyweds, yet find themselves needing the benefits of a postnuptial agreement.
Getting Legal Guidance in Creating a Postnuptial Agreement
Navigating the complexities of a postnuptial agreement can be a daunting task, particularly when seeking to ensure that the provisions align with both the individual goals of the spouses and the legal requirements set forth in Florida. To properly address specific needs and comply with statutory mandates, it is essential to consult with legal experts.
Experienced family law attorneys can provide invaluable assistance in creating a postnuptial agreement that is tailored to the unique circumstances of the couple. Such circumstances may include considerations related to the protection of pre-marital assets, estate planning considerations, child support obligations, and other financial responsibilities . Additionally, given the evolving nature of personal relationships, it may be necessary to revisit and revise the agreement over time, particularly if there are significant life changes such as the birth of children, the acquisition of new assets or properties, or other relevant circumstances.
The counsel of family law attorneys is critical in ensuring that postnuptial agreements are equitable and in compliance with the Florida Statutes. Specifically, it must adhere to statutory requirements regarding full and fair disclosure, independent representation of each party, acknowledgement of voluntary consent, and consideration of the needs of any children involved.
In conclusion, the importance of consulting legal experts to properly draft and modify postnuptial agreements cannot be overstated, as they are critical to ensure that the agreements are both enforceable under Florida law and reflect the particular needs of the spouses involved.