Why Consider a Prenuptial or Postnuptial Agreement?
When couples decide to get married, it is easy and natural to get caught up in the excitement and emotion this event evokes and discount the need to consider future financial contingencies in the event the marriage does not work out. Certainly, bringing up the possibility of divorce is not a topic of conversation engaged or newly married couples want to broach, but thinking about protecting your assets before something bad happens will make resolving future disputes much simpler. Additionally, in the unfortunate event of dissolution, having an agreement already in place will make this process much easier, faster, and less expensive. Most people have heard about prenuptial agreements, especially among celebrities, but there are also postnuptial agreements that can be executed after marriage that serve the same essential purpose – deciding how property and other benefits will be divided in event certain things happen. An overview of law on the permitted content and execution of these agreements will follow below in hopes of showing couples the value of these contracts for the average person, not just the rich and famous.
Prenuptial agreements are contracts made between prospective spouses that become effective upon marriage. In order to have a valid agreement, it must be in writing and signed by both spouses. The property referenced in the agreement can relate to current and future properties owned, including real or personal and tangible and intangible, and all income. Specifically, a prenuptial agreement can include terms related to:
- the rights and obligations of either party over the ability to manage and control property, including the power to sell, buy, use, lease, mortgage, or transfer any piece;
- the division of property in the event of separation, divorce, death, or some other occurrence;
- the terms on the payment or non-payment of spousal support;
- whether a will, trust, or other estate planning document needs to be created to carry out the term of the prenuptial agreement; and
- ownership rights in life insurance policies.
These agreements can be amended, revoked, or abandoned after marriage as long as the change is in writing. It is important to note that provisions in prenuptial agreements that attempt to affect the obligation of either party to pay child support are not enforceable. Further, if it is determined that a party did not voluntarily consent to the agreement, signed under duress, or did not receive accurate and adequate financial information from the other party, a court can also find the agreement is unenforceable.
Postnuptial agreements are created after a couple marries, and are intended to settle a couple’s financial affairs upon separation or divorce. Basically, the terms of postnuptial agreements require one or both spouses to waive rights to certain benefits granted to a spouse upon the death of the other. Specifically, spouses may waive rights to property shares, allowances, and preference in appointment as personal representative. In addition, all the terms noted above for prenuptial agreements may also be included. These agreements must be written, and signed in the presence of two witnesses. Each spouse must attest they provided a fair and accurate disclosure of their financial information, and is necessary for these agreements to be valid. This requirement is an additional condition not seen in prenuptial agreements. Courts have determined that unfair provisions in favor of one spouse, or contracts obtained under fraud or duress can render an agreement unenforceable.
Talk to a Family Law Attorney
If you want to explore the benefits of pre- and post-nuptial agreements, an experienced family law attorney can discuss the mechanics of these agreements and how best to structure one for your situation. The Fort Lauderdale law office of Joyce A. Julian, P.A. offers representation in all family law matters, including nuptial agreements, and can advise you on how best to protect your interests. Contact her office for a free consultation.