Married couples can enter into contracts with each other regarding financial and other matters. These contracts are called postnuptial agreements, and they can serve multiple useful purposes. However, they are only effective when carefully drafted by a capable marital agreements attorney.
When properly drafted, postnups are enforceable in court. Speak with a Coconut Grove postnuptial agreement lawyer if you are interested in learning more.
Postnuptial Agreements Are Versatile
Postnuptial agreements can help couples clarify outstanding issues in their marriage and prepare for changes. Here are a few situations in which they could be helpful.
Replace a Prenuptial Agreement
A prenuptial agreement cannot be revoked or amended except by another marital contract. When developments require a change to the couple’s prenup, they can negotiate a postnuptial agreement to replace it.
Prepare for Divorce
Couples anticipating divorce can use a postnuptial agreement to decide how they will divide their property, whether one spouse will pay alimony, and settle similar issues before they officially file. Using a postnuptial agreement in this way can speed the divorce process.
However, couples who share minor children should be aware that a postnuptial agreement is not an appropriate way of deciding issues related to the children, such as custody and child support. The parents must create a separate parenting plan to address them.
Ensure Ongoing Care for Loved Ones
Some couples in Coconut Grove may use a postnuptial agreement to ensure that loved ones with physical or mental health challenges will receive appropriate care. A postnuptial agreement could obligate each spouse to care for the vulnerable person if the other spouse dies or becomes incapacitated.
Protect One Spouse from the Other’s Liabilities
Married couples are legally responsible for each other’s debts. Sometimes one spouse accumulates excess debt or assumes liability risk through their business dealings. A postnuptial agreement can offer the other spouse some protection from the other’s liabilities. These postnups must be carefully drafted to achieve their intended purpose, so it is critical to work with an experienced Coconut Grove attorney.
Address Spousal Misconduct or Other Issues in the Marriage
All couples go through rough patches. Sometimes they turn to postnuptial agreements when a situation has endangered the marriage, but the couple has decided to put it behind them and stay together. In many cases, these agreements impose a penalty for past spousal misconduct and may impose harsher penalties for future misconduct.
Legal Requirements for Postnuptial Agreements
A postnuptial agreement is a contract. To be enforceable, it must comply with general contract law and some additional requirements specific to family law. A postnuptial agreements attorney in Coconut Grove can explain what the law requires and how to ensure enforceability in a specific case.
A postnuptial agreement is not enforceable unless it is in writing and signed by both spouses. They must have entered the agreement willingly and each must have the opportunity to review the draft agreement with a private attorney. The couple must make accurate financial disclosures to each other before signing.
Most marital agreements require consideration, which is an exchange of value. However, Florida Statute § 61.079 waives the need for consideration when the couple is using a postnup to replace a prenup.
Challenging a Postnuptial Agreement
Sometimes a spouse enters a postnuptial agreement and later regrets the decision. If the other spouse does not agree to an amendment and seeks to enforce the contract, it is sometimes possible to challenge its legal validity. Anyone hoping to overturn a postnuptial agreement or defend a challenge should work with an experienced Coconut Grove lawyer.
A postnuptial agreement may not be enforceable if there are technical issues like a missing signature. Other reasons a court might decline to enforce a postnuptial agreement include:
- Incomplete, misleading, or fraudulent financial disclosure.
- Undue pressure to sign the agreement.
- Inadequate opportunity to get independent legal advice.
Any of these circumstances could persuade a court that the spouse did not provide willing consent to the agreement. A court can also set aside a postnuptial agreement if it is “unconscionable,” which means shockingly one-sided or unfair. These agreements must treat both parties reasonably under the circumstances.
Contact a Coconut Grove Attorney Today If You Are Considering a Postnuptial Agreement
Postnuptial agreements can help a couple simplify a separation or divorce, and any other issues the couple may face.
If you are anticipating a divorce or dealing with other issues that might be resolved through a contract, speak with an attorney at The Florida Probate & Family Law Firm. A Coconut Grove lawyer could explain whether a postnuptial agreement is right for you and draft a contract to your preferences. Reach out now to arrange a complimentary case evaluation.