What to Know About a Florida Postnuptial Agreement
A prenuptial agreement is one that is drafted prior to the marriage, whereas a postnuptial agreement is one that is executed once the couple has already exchanged vows. Marital agreements are often used by parties who have a significant amount of assets, or were married previously and need to address assets or custody matters. There may be other reasons, like one spouse is in financial trouble, that leads a couple to want a postnuptial agreement.
In Florida, the law doesn’t allow for all issues and topics to be included in a postnuptial agreement. Therefore, if you are considering a postnuptial agreement, you need a Florida family law attorney who is familiar with drafting and enforcing marital agreements. Here is a look at some of the common elements of a valid postnuptial agreement.
Common Topics in Postnuptial Agreements
There are some common topics addressed in postnuptial agreements. These include:
- Child custody and parenting plans
- Child and spousal support
- Equitable division of property
- Detailed list of marital property
- Marital debts and who will be responsible
- Children’s college expenses
- Retirement and insurance accounts
Create an Enforceable Postnuptial Agreement
It’s important that your postnuptial agreement be enforceable otherwise it’s a worthless exercise. To start, the agreement cannot be signed under duress, nor can you coerce your spouse into signing. If a party can show that facts were misrepresented or you deceived your spouse in another way, the court may modify the agreement or set it aside. Both parties need to meet with independent counsel, and there must be a full disclosure of assets. If your spouse signed the agreement without independent review from counsel, the court may be rather skeptical of it.
Because a postnuptial agreement is a binding contract, there must be valid consideration. This is something that is required with every contract. In a postnuptial agreement, it may be something like mutual promises, or perhaps mutual cancellation or an earlier postnuptial or prenuptial agreement. Because the agreement is drafted after the couple is married, the act of marriage cannot be used as consideration.
Can You Void a Postnuptial Agreement?
A Florida court may find a postnuptial agreement is unfair, which can raise the presumption that one spouse didn’t have complete knowledge of the couple’s financial situation. This means the agreement could be deemed involuntarily. The other side would have to provide a rebuttal showing the spouse did in fact have full knowledge of the other spouse’s income and assets and he or she made a full disclosure. The argument would be that just because a spouse made a bad decision doesn’t mean the court should modify the postnuptial agreement or set it aside.
There may be instances where a postnuptial agreement is voided, but that is based on specific circumstances and facts.
Retaining a Florida Family Law Attorney
If you are considering a postnuptial agreement or your spouse has prepared one and is asking you to sign, it’s in your best interest to retain a knowledgeable Florida family law attorney. The team at Schwartz | White has years of experience drafting and reviewing postnuptial agreements. Contact our office at 561-391-9943 to schedule a consultation.
