Married couples can enter contracts that resolve issues that might come up in a divorce. A postnuptial agreement (postnup) also allows a couple who is not anticipating divorce to formalize an understanding between them regarding the spouses’ conduct or financial issues.
A postnuptial agreement is like a prenuptial agreement and can accomplish the same goals, plus some others. Talk to a South Miami postnuptial agreement lawyer to learn more about resolving marital issues through a contract.
Reasons to Get a Postnuptial Agreement
Couples can use postnups to accomplish several different goals. Many couples use a postnuptial agreement to replace a prenup that is no longer workable or fair. However, a postnup can be useful and effective in many different circumstances.
Prepare for Divorce
Establishing a divorce plan might be the most common use of a postnuptial agreement. When a couple agrees on property division and alimony before filing for divorce, the legal process of dissolving the marriage is typically quicker and less expensive.
Couples with children cannot resolve issues surrounding custody, visitation, and child support in a postnuptial agreement. However, negotiating the agreement allows them to discuss issues surrounding the children and start developing a parenting plan, which is a separate agreement they must submit to the court.
Protect Vulnerable Family Members
Couples sometimes use a postnuptial agreement to ensure vulnerable loved ones are protected. For example, if a family member becomes significantly disabled in an accident or a spouse is caring for an elderly parent, the couple might make a postnup specifying a surviving spouse’s responsibilities toward the vulnerable person if one spouse dies.
Protection From Debts
Married people share the interest in the property they acquire while married and they are responsible for the debts either spouse acquires during the marriage. When one spouse has incurred significant debt, such as through gambling or obsessive spending, or liabilities, such as being a defendant in a lawsuit, the couple’s assets are at risk. A skilled South Miami attorney can draft a postnuptial agreement that protects the innocent spouse from hardship due to the other’s debts or liabilities.
Penalize Spousal Misconduct
Couples in South Miami sometimes use a postnuptial agreement when they decide to work through one partner’s misconduct and preserve the marriage. These agreements vary with the circumstances but they often include a financial penalty against the spouse who engaged in misconduct and call for other penalties (or divorce, if they repeat it).
Meeting Legal Requirements for Postnups
A postnuptial agreement is a contract and it must meet specific legal requirements to be enforceable. When a couple does not comply with all the legal requirements a Judge might not enforce the agreement.
Both parties must make a full financial disclosure of all their income, assets, debts, and potential liabilities before either spouse signs the agreement. Both spouses must have their own lawyer review the agreement before they sign it. Unlike a prenup, a postnuptial agreement requires “consideration,” which is a legal term meaning each side must give something up in exchange for something from the other. However, according to Florida Statute § 61.079, consideration is not required if the postnuptial agreement replaces a prenup.
Postnuptial agreements that are not written down are not enforceable and a Judge will not enforce an agreement against a spouse who did not sign it.
Enforceability of Postnuptial Agreements
Judges will not enforce a postnuptial agreement if the couple does not comply with all the legal requirements. Occasionally an agreement can be invalidated even when the couple did everything else correctly.
Sometimes a spouse asks a court to invalidate a post-nuptial agreement. A Judge would review whether both spouses made complete and accurate financial disclosures. If not, the agreement might be invalid. If one spouse felt pressured to sign or if they did not have the opportunity to get an independent legal review, the Judge might not uphold the agreement.
A Judge also can invalidate the agreement if it is unconscionable, which means it is so unfair that it “shocks the conscience.” A South Miami attorney could review an agreement to determine whether a claim of unconscionability has merit.
Contact a South Miami Attorney Today When You Are Considering a Postnuptial Agreement
Postnuptial agreements are an excellent way for couples to handle various unexpected issues that might arise in their marriage or to prepare for divorce. However, the agreement must be drafted with precision and the couple must follow all the rules or the agreement will not be enforceable.
When you need a legal professional to draft a postnup or review one someone else has drafted, contact a South Miami postnuptial agreement lawyer from The Florida Probate & Family Law Firm. You can schedule a free case evaluation today.