At Orlando Family Team, our attorneys offer a full range of family law services, including the creation of postnuptial agreements for married couples. Such agreements are designed to clarify the way the family will handle their finances going forward, including if they ever decide to divorce or if one partner dies prematurely.
While such contracts used to be viewed as pessimistic and unnecessary, in the modern world they are more often considered practical and essential when it comes to avoiding conflict. As a matter of fact, because such a high percentage of marriages end in divorce, and because money problems are a primary cause of marital tension, it stands to reason that coming to a documented understanding of who owns (and who owes) what in a marriage is likely to make marital ties stronger and difficult decisions easier to arrive at.
How Postnuptial Agreements Differ from Prenuptial Agreements
Postnuptial agreements, unlike prenuptial agreements, are crafted after marriage. In many cases, the couples now have greater awareness of the complexities of marital finances and are ready to establish terms regarding the division of assets and responsibilities in case of divorce or death. Postnuptial agreements, when properly crafted, can help strengthen the financial security of both parties and the marriage as well.
Reasons Couples Want Postnuptial Agreements
Many couples feel differently about financial and other matters as the marriage progresses due to changes in circumstances and/or changes in perspective. Following are several reasons clients come to us to have postnuptial agreements drafted:
- They have a prenup but want to change its terms to fit their current situation.
- They have hit a rough patch in the marriage and want to reconcile by clarifying and documenting certain issues.
- They want to ensure that their children from a former relationship inherit meaningful assets from them.
- One member of the couple has stopped working to raise the children and they want to ensure that distribution of their assets will, nonetheless, be equitable.
- One spouse has accumulated substantial wealth, e.g. from an inheritance or gift, and the couple wants the division of their assets to be fair to both partners and their offspring.
- One spouse has inherited a business and wants to protect it as a separate asset.
- One spouse has accumulated considerable debt and the other spouse doesn’t want to be responsible for repayment.
Issues Addressed in a Postnuptial Agreement
Many couples feel more relaxed in their marital relationship once they have addressed the following issues and no longer have to worry about unknowns.
Division of Property
A crucial aspect of postnuptial agreements involves the division of property.
Asset Division
Asset division specifies how assets, including real estate, investments, retirement accounts, personal belongings, and debts will be divided in the event of divorce, legal separation or the death of one spouse. It is not uncommon for one spouse to specify that they want a child from a previous marriage to be given or inherit a particular piece of property or personal belonging if that spouse dies or becomes incapacitated.
Redefining Marital and Separate Property in Florida
It is crucial for both spouses to understand the distinction between marital and separate property is essential under Florida law:
- Separate property includes assets owned by each spouse before marriage, such as inheritances received individually and gifts given specifically to one spouse during the marriage. However, an asset only remains separate during the marriage if it is not commingled with marital assets or used to pay household expenses.
- Marital property is made up of assets acquired jointly during the marriage, including income earned by either spouse and any increase in value of separate property during the marriage. A gift given to one spouse by the other becomes marital property, as does any separate property that is commingled with marital assets.
Rights and Responsibilities
A postnuptial agreement may also establish:
- Financial Responsibilities by outlining each spouse’s financial obligations and management responsibilities during the marriage, such as contributions to household expenses, savings, and investments.
- Decision-Making by authorizing one spouse or the other to have the final say in financial matters like investments, major purchases, and financial planning strategies.
Spousal Maintenance
Postnuptial agreements can address spousal support by designating under what conditions either spouse will be the recipient of spousal support (alimony), stating how much support will be paid and for how long a period of time.
Enforcing Postnups
To enforce a postnuptial agreement in Florida, certain conditions must be met:
- Voluntary agreement by both parties —Both spouses must have entered into the agreement voluntarily, without coercion or undue influence.
- Full disclosure — Each spouse was entirely transparent in disclosing their financial assets, liabilities, and income sources.
- Fair and reasonable terms — The terms of the agreement must be fair and reasonable at the time of execution and should not unfairly disadvantage one spouse over the other.
Postnuptial agreements offer Florida couples a valuable legal tool to protect their assets, clarify their financial responsibilities, and outline expectations during marriage and in the event of divorce or death.
Considering a Postnuptial Agreement? Contact Orlando Family Team Today
If you are considering having a postnuptial agreement, chances are that you need one. The very fact that you feel uneasy about some aspect of your marital finances makes it likely that you and your spouse would be more comfortable if you put some questions and concerns to rest. Let the experienced, empathic attorneys of Orlando Family Team assist you in constructing a document to strengthen your marriage and put you both at ease about your future.
