West Palm Beach Postnuptial Agreement Lawyer
Getting married is viewed as a very romantic time in a person’s life, and often the logistics of long-term planning for all future possibilities can be left by the wayside. However, as divorces become more common, and dividing assets and determining familial responsibilities become more complicated, it is important to have a pre-set agreement for the future. My name is William Wallshein, and I am a West Palm Beach postnuptial agreement lawyer. For more than three decades, I have helped clients plan for the future with postnuptial agreements. Whether you’re preparing for a divorce or want to set terms in the event of a future separation and avoid litigation, I can help you come to an agreement that protects your rights.
Purposes and Types of Nuptial Agreements
Nuptial agreements are created to pre-establish rights and obligations of a couple during marriage. They also provide a guideline in case of marriage dissolution. Pre-nuptial agreements, or pre-marital agreements, are arranged by couples before they get married. These documents specify the rights and obligations of each party during the marriage, as well as in the event of divorce or death. Post-nuptial agreements contain the same type of specifications but are signed after a marriage, even when no divorce is planned. If divorce is forthcoming when the agreement is signed, these are sometimes called separation agreements.
Post-nuptial Agreement Requirements in South Florida
Post-nuptial agreements can include an array of provisions to set out rights and obligations of spouses during marriage, after a divorce, or following death. Without a prior agreement stipulating otherwise, Florida law requires “equitable distribution” of marital property during a divorce. This means that courts will presumptively divide all assets and debt in half, unless there is a specific justification for an unequal distribution. Post-nuptial agreements can replace this rule if they specify how property is to be divided between spouses. Agreements can also contain provisions regarding the distribution of assets and spousal support specifications. However, waivers of parental responsibilities, parental support, and time-sharing rights are not allowable in post-nuptial agreements.
Under Florida statutes and case law, post-nuptial agreements must meet certain requirements to be enforceable by a court. The agreement must be in a written document signed by both parties, and both parties must have received a full and fair financial disclosure. Moreover, the agreement must contain what is called “consideration,” which usually consists of mutual promises by each spouse. The agreement may include an express waiver, if the spouses wish, of equitable property distribution rights, alimony rights, homestead property rights, death rights, and rights to the interest in retirement plans.
If the post-nuptial agreement contains provisions regarding surviving spousal rights in the case of death, the agreement must also follow rules pertaining to valid execution of a will. This means that, among other requirements, the agreement must be signed in the presence of two witnesses. Due to their complicated nature, each party is encouraged to consult his or her own lawyer to be informed of all rights and ensure a valid post-nuptial agreement is created. Since nuptial agreements are not often modifiable or voidable, even if seemingly one-sided, it is important to have separate attorneys to review any agreements before they are executed.
Pros and Cons of Post-Nuptial Agreements
A post-nuptial agreement, or postnup as it is often called, is a legal agreement that is signed after the marriage. It can include the same points as a pre-nuptial agreement, or prenup, which is signed prior to marriage, but often addresses different issues and topics.
If you are contemplating a post-nuptial agreement, you need to consider any potential pros and cons and contact an experienced Florida family law attorney to help ensure your postnup stands up in the courts.
Potential Pros of a Postnup Agreement
Some people think postnuptial agreements are a great idea, especially if it is your second or third marriage, and you have kids from a prior marriage you want to protect during asset distribution.
For some couples that are experiencing a troubled marriage, creating a document that outlines the issues they are struggling with may actually strengthen their marriage, especially with the right legal counsel guiding them through the process.
Post-nuptial agreements can be drafted to clarify or add on to an existing prenup that is already in place. It can provide extra security for some couples and address issues or situations that may not have existed prior to the marriage. Because a postnup is formed after the marriage, simple things like chores or duties at home may be easier to define because you have settled into a routine.
In the case of a postnup due to a previously cheating spouse, it can protect you from future infidelity by addressing your divorce rights and encouraging your spouse to work on the marriage. Even if infidelity is not the reason for drafting the agreement, it can still protect you and simplify a potential divorce. For couples trying to avoid divorce, a postnup may settle one or more simple issues in the marriage that are deemed to be sticking points or a roadblock to a successful marriage.
Potential Cons of a Postnuptial Agreement
For some couples, the signing of a post-nuptial agreement can put a damper on the marriage, as it signals that the bond is not forever and, at some point, separation and/or divorce are inevitable. Other times, a postnup is drafted because of infidelity issues, or other issues that have the couple considering legal separation and/or divorce. Because of that, communication and trust in the marriage are already breaking down, so discussing financial matters and agreeing on terms can make things worse.
If you are signing a post-nuptial agreement after infidelity in an attempt to win back your spouse, be cautious about over-delivering, or you might find yourself headed for divorce anyway. As Florida is a no-fault divorce state, you do not need to prove infidelity to file. If both spouses are really ready to work on the marriage after an affair, a post-nuptial agreement might help; however, if the scorned spouse is just waiting for the agreement to be finalized, the whole exercise was worthless and you might be on the losing end in a messy divorce. Either way, be wary if you are hoping this will prevent a cheating spouse. Some experts do not believe post-nuptial agreements drafted to deter infidelity will work in the first place.
Postnups can make a divorce or survivorship claim more complicated. Many times, couples that attempt to create a postnup without legal assistance will find the document does not include all the necessary information or has terms that are not legally enforceable. In a survivorship claim, the postnup may become an issue if it contradicts the terms of an existing will.
Contact an Experienced Postnup Lawyer in West Palm Beach
Whether you’re facing an imminent divorce or just want to be prepared for an unexpected situation, it is worth the time and effort to speak with a lawyer. I am William Wallshein, a West Palm Beach family law attorney who can help you plan your future. I assist clients throughout Broward, Martin, and Palm Beach Counties in establishing valid postnuptial agreements that create a framework for each party’s rights and responsibilities during or after a marriage. If you’d like more information on setting up a post-nuptial agreement, please call 561-533-1221 or contact us online to schedule a free initial consultation.
