Postnuptial agreements are almost identical to prenuptial agreements. Both of these agreements allow spouses (fiancées in the case of prenuptial agreements) to decide on property division, alimony, and other matters that become important in a divorce.
Postnuptial agreements are executed after the couple officially gets married. These agreements are not the most romantic contracts out there; after all, who wants to think about a divorce right after the wedding? Although, some people contemplate a postnuptial agreement long after the marriage in the hopes of laying out their financial understandings to simplify financial issues that may be placing the marriage in danger of failure. The benefits of creating a well-thought-out postnuptial agreement are numerous, though, and can save much in the way of stress during a divorce or separation. We’ve outlined four things to think about if you’re pondering a postnuptial agreement for you and your spouse.
There Are Limits to Postnuptial Agreements
While postnuptial agreements can help couples get ahead of divorce-related matters, there are limits to what these contracts can do. Child support, for example, cannot be dictated by a provision in a postnuptial agreement, and neither can child custody arrangements. These arrangements must ultimately be in the best interests of the child, which means that they are ultimately left to the sound discretion of a judge in the event of a divorce. That is the case even if the parties settle their case, leaving the court to review and ratify their settlement agreement and parenting plan.
Postnuptial Agreements Are Sometimes Struck Down
The legal permissibility of prenuptial and postnuptial agreements vary from state to state. Florida generally allows postnuptial agreements unless:
- Either spouse did not fully disclose their finances or assets to a spouse who did not have a general knowledge of their spouse’s finances;
- One spouse did not have legal counsel when the agreement was being negotiated and approved because he or she had no ability to obtain counsel;
- Either spouse was coerced to sign the agreement;
- The postnuptial agreement is so one-sided and unfair that it’s considered “unconscionable”; or
- The contract did not comply with the applicable legal formalities.
Postnuptial Agreements Can Indemnify Spouses Against Debts
Much of the focus on postnuptial agreements is on division of assets and property, and rightly so. However, these agreements can also be useful if one spouse has a large amount of debt. To ensure the other spouse does not get saddled with debt after divorce, the spouses may agree on an indemnification provision of the agreement. To indemnify someone is to cover for their debts or obligations. So, one spouse may agree to indemnify the other spouse for any debt, liens, or levies that stem from his unpaid taxes. Importantly, indemnification in a postnuptial agreement can address current and future debts.
Spouses Who Take a Career “Sabbatical” Can Benefit From Postnuptial Agreements
Again, many people assume that postnuptial and prenuptial agreements are only for wealthy spouses with precious assets. That’s generally true in the case of prenuptial agreements. However, postnuptial agreements are better designed to help spouses react to post-wedding changes in circumstances.
A spouse who takes a career break to, for example, take care of the kids may be worried about the money he or she would get in the event of a divorce. Florida law does provide for judges to consider a spouse’s contributions to the marital home when determining alimony, but spouses can help ensure they get a fair deal by executing a postnuptial agreement.
Experienced Legal Representation Matters
Creating, or even discussing, a postnuptial agreement with your spouse is not an admission that your marriage will end in divorce. However, knowing that divorce is a reality for over fifty (50) percent of married couples can help the two of you come to the table in a reasonable, professional manner to consider such an agreement. Perhaps you have precious non-marital assets that need protecting. Maybe you just want to hammer out a fair deal on alimony while you and your spouse are both of rational minds.
Our team would be honored to help you create a fair postnuptial agreement. We have the know-how, professionalism, and compassion to help you resolve any family law issues you’re dealing with. If you’d like to talk to us soon, please call (954)-447-2580 to set up a confidential consultation today.