Some people believe that if you marry your spouse without a prenuptial agreement, the income and assets acquired during the marriage will always be marital property. But that’s not exactly true. Alimony can also be waived in postnups.
An easy solution can be designating the couple’s rights to property through a postnuptial agreement. A postnuptial agreement is a written agreement executed after a couple get married, to settle the couple’s affairs and assets in the event of a divorce.
Why do couples enter into a postnuptial agreement?
There are three main reasons why people enter postnuptial agreements.
- One of the most common reasons is to protect assets in the event of a divorce. The postnuptial agreement should contain a provision that clearly explains how the assets will or will not be divided if the couple divorce.
- To provide for the distribution of the parties’ assets in the event of the death of a party.
- To clarify the obligations of the parties during the marriage. For example, the postnuptial agreement may address which spouse shall be responsible for certain expenses during the marriage such as a mortgage.
Florida’s Postnuptial Agreement Requirements:
The State of Florida does not have a particular form. In fact, some courts have ruled that an oral postnuptial agreement may be deemed valid and enforceable. See Kersey v. Kersey, 802 So. 2d 523 (1st DCA 2001); and Walz v. Walz 652 So. 2d 929 (Fla. 1st DCA 1995). However, it is strongly encouraged to put the agreement in writing.
Specific clauses should be included in the agreement so that the parties’ intentions can be easy to identify in an action for enforcement. Any waiver of rights in marital property must be clear and specific. See Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004). A written agreement will be extremely useful in proving such a waiver.
What cannot be waived in Post-Nuptials:
Can you modify or terminate a postnuptial agreement?
The Florida Supreme Court has listed the following two grounds for revocation or modification of a postnuptial agreement:
The first ground is the establishment of fraud, deceit, duress, coercion or overreaching the challenging spouse.
The second ground has multiple elements. The party challenging the agreement must first show that the contract makes an unfair or unreasonable provision for that spouse under the circumstances. This may be established through evidence of the parties’ relative situations including their ages, health, education and financial status. The trial court must find that the agreement is “disproportionate to the means” of the defending spouse and the record must contain evidence supporting that spouse’s financial means.
Once the agreement is found to be unreasonable, a presumption arises that there was either concealment or lack of knowledge by the challenging spouse at the time of the agreement. The burden will shift to the defending spouse who may rebut this presumption in one of two ways.
- First, he/she may prove full and frank disclosure of assets to the challenging spouse prior to the signing of the agreement.
- Second, it may be shown that the challenging spouse had general and approximate knowledge of the character and extent of marital property sufficient to obtain a value by reasonable means of the assets and income of the parties.
The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.
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