Prenuptial and Postnuptial Agreements

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.

A prenuptial agreement is essentially a contract between parties who intend to get married, and it goes into effect once they marry. Under Florida law, 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, how any property will be divided in the event of a divorce, and whether either party is entitled to alimony. However, prenuptial agreements cannot dictate how custody of any current or future children whom the couple shares will be divided should the parties divorce, or whether either spouse will owe child support.

Generally, the courts will enforce prenuptial agreements. Therefore, a party seeking to set aside an agreement must show that it was not formed voluntarily or was a product of coercion, duress, fraud, or overreaching. 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.

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 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.

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 had 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.

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.