Prenuptial and Postnuptial Agreements

Miami Attorneys Representing People in Family Law Matters

While few people enter into a marriage with a view toward divorce, many people understand that some marriages end, and when they do, it can have a significant financial impact on both parties. Many people in South Florida have substantial assets, and they may have concerns regarding their property in the event that they get a divorce. Fortunately, there are steps that parties can take to protect their wealth, like entering into prenuptial and/or postnuptial agreements. If you need assistance with safeguarding your interests, the Miami family law attorneys at Hertz • Sager can help you draft the appropriate instruments.

Florida Law Regarding Prenuptial Agreements

A prenuptial agreement is a contract between parties who intend to get married, and it goes into effect once they marry. Under Florida Statute §61.079, prenuptial agreements must be in writing and signed by both parties to be valid. They allow future spouses to address issues such as which property will be considered marital, which property will be considered separate or non-marital property, how property will be divided in the event of a divorce, the ownership rights of death benefits from a life insurance policy, the making of a will, trust, or other agreement to carry out provisions of the prenuptial agreement, and whether either party is entitled to alimony. If an agreement modifies or eliminates alimony, and that modification or elimination results in one party being eligible for support under a public assistance program, a court may require the other party to provide support to avoid that eligibility despite the terms of the agreement, However, prenuptial agreements cannot prospectively determine issues relating to any existing or future children the couple shares, including timesharing, parental responsibility, or child support, in the event of a divorce. During the marriage, prenuptial agreements may be amended or revoked by a subsequent written agreement signed by the parties.

Generally, the courts will enforce prenuptial agreements. However, there are two ways in which a party may attempt to invalidate an agreement. The first way a party may seek to set aside an agreement is to show that it was not formed voluntarily, or it was a product of coercion, duress, fraud, or overreaching. The second way an agreement may be set aside is if it was unconscionable when formed, meaning it was so inherently unfair when it was entered into that no honest and fair man would offer or accept it. It may be found as unconscionable if the one party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party, one party did not voluntarily and expressly waive, in writing, the right to disclosure of the property or financial obligations of the other party, or one party did not have, or reasonably could not have, adequate knowledge of the property or financial obligations of the other party. The issue of unconscionability is decided by the court as a matter of law. An agreement can also be deemed unenforceable if the party against whom enforcement is sought was not provided with a reasonable disclosure of the other party’s financial obligations and did not waive the right to disclosure. An agreement will not be voided merely because it is unfavorable to one party, though, as long as no other grounds for overturning it exist. If a marriage is deemed void, a prenuptial agreement may still be enforceable to the extent necessary to avoid an inequitable result.

Postnuptial Agreements in Florida

Postnuptial agreements are similar to prenuptial agreements in that they allow spouses to set forth their rights and obligations with regard to property and assets, must be in writing and signed by both parties, and cannot dictate the right to child custody or child support. They differ in some ways, however. First, as the name suggests, postnuptial agreements or antenuptial agreements are formed after a couple is married. Additionally, Florida courts have overturned postnuptial agreements if they are unreasonable or unfair toward the spouse challenging the agreement. A court will assess each spouse’s age, health, financial status, and education and determine whether the agreement provides adequate support for the challenging spouse. If it does not, it may be deemed unreasonable. Our divorce lawyers can advise you on whether you have strong grounds to challenge an agreement or seek to enforce a valid prenuptial agreement if your spouse challenges the agreement as part of your divorce case.

Prenuptial and Postnuptial Agreements and Estate Rights

In some cases, people will not wish to address property division or alimony in prenuptial and postnuptial agreements but will want to define spousal rights to an estate. This is common in situations in which one or both parties have children prior to entering into their current relationship. Florida law specifically dictates that a couple can enter into a contract waiving the right to intestate, pretermitted, or elective shares, homestead or exempt property, or family allowances before or after they are married. If a prenuptial or postnuptial agreement contains provisions regarding the right to a spouse’s estate, it must be signed in front of two witnesses.

If an agreement regarding estates is formed after the marriage, each spouse must make a fair disclosure of their estate for the agreement to be valid. If the agreement is prenuptial, though, no such disclosure is necessary. The parties are not required to exchange consideration for the agreement to be valid, regardless of whether it is prenuptial or postnuptial, the contract is valid if there is a valid marriage.

Foreign Prenuptial and Postnuptial Agreements

If you entered into a prenuptial or postnuptial agreement in another state or country, but are getting divorced in Florida, whether your agreement is valid and enforceable depends both on the law of the jurisdiction in which your agreement was executed and Florida law. Any attempt to apply the law of a foreign county is void if it contravenes Florida’s public policy or if the law is unjust or unreasonable. An agreement is not against public policy unless it is injurious to the interest of the public, or it contravenes some established interest in society. The family law attorneys at Hertz • Sager have adopted foreign prenuptial and postnuptial agreements in Florida.

Consult a Seasoned Miami Lawyer

While some people view prenuptial and postnuptial agreements as unromantic, they are practical tools that can prevent people from suffering significant financial losses in the event of a divorce. If you need legal counsel regarding what you can do to protect your assets, the family law attorneys at Hertz • Sager can advise you about your options and help you develop a plan to pursue your desired outcome. We assist people with family law matters in Miami and throughout Miami-Dade, Palm Beach, Monroe, Broward, and Collier Counties. You can contact us by using our online form or calling us at 305.444.3323.