Florida Family Law: The Postnuptial Agreement

You may have heard of prenuptial agreements, but these are not the only option available to couples who want to create a contract that will be enforceable in the event of a divorce. Postnuptial agreements are similar to prenuptial agreements, but they are created and executed after the date of marriage and/or prior to separation.  While you may not be anticipating a divorce in the near future, knowing how to divide your assets and debts while cooler heads prevail will bring you a peace that is otherwise nonexistent during a heated divorce.

These agreements are created by the couple, and they set out terms regarding:

  • Dividing assets
  • Alimony
  • Splitting debts
  • Setting out which liabilities or assets are considered marital property or separate property

This type of agreement serves three primary purposes:

1. Protect assets in the event of divorce;

2. Provide for the division of assets in case one spouse passes away; or

3. Set out the obligations of the parties during the marriage

The couple can also set out the terms of an immediate separation as well. These terms can even include things like child timesharing arrangements (parenting plans) and support.

Creating an Enforceable Postnuptial Agreement

To have legal effect, a postnuptial agreement must meet specific requirements. For example, a person cannot be coerced or threatened into the agreement. If a party overreaches or forces someone into a postnuptial agreement, then it is legally valid, provided that evidence of duress is presented. It can be voided entirely by the court, or it can be modified in some limited situations. The same concept applies to cases where one party made misrepresentations, misled or tricked the other into signing the agreement.

For a postnuptial agreement to be valid in Florida, both parties must fully disclose their assets to one another. If one party hid assets or did not tell the other person about money or other assets, the court is far more likely to set aside the agreement. It is also likely to be unenforceable if both parties did not have the advice of an counsel in creating the document, where either of the voidable factors exist.

Like every contract, a postnuptial agreement needs consideration or the requisite quid pro quo for it to be deemed valid.  That means that each party must give up something to get something; it’s the essence of exchange. In a prenuptial agreement, the marriage itself is consideration, but that is not true in a postnuptial agreement.

Getting Help with Your Postnuptial Agreement

Keep in mind that just because a postnuptial agreement is a “bad deal” for one person does not automatically mean that the contract is invalid—it could just be a poor decision. Don’t let this type of bad decision happen to you. Instead, speak with the team at McKINNON LEGAL to help you decide what kind of agreement will work best for you and determine what you can do to increase the likelihood that the contract will be enforceable. Call McKINNON LEGAL to speak to our attorneys today.