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Fort Myers Florida Family Law Legal Blog

Married couples may consider postnuptial agreements

On Behalf of | Dec 22, 2022 | Divorce, Prenuptial Agreements |

Prenuptial agreements appear in the news after celebrity divorces. But married couples in Florida may also consider entering postnuptial agreements that can help resolve the division of their property and other issues if they ever decide to end their marriage.

Postnuptial agreements

A postnuptial agreement is similar to a prenuptial agreement and addresses property division and other matters if the couple ever divorces or a spouse dies. Postnuptial agreements, however, are negotiated and entered any time after marriage while prenuptial agreements are executed when a couple is engaged.

Postnuptial agreements are useful for addressing matters that arose during a marriage, such as a spouse starting a new business, acquisition of new assets, income growth or estate planning. These agreements can also help resolve any inequities in a prenuptial agreement or help provide reassurance to a spouse if the other spouse engaged in marital infidelity.

Spousal support

Couples may agree to spousal support obligations in a postnup, instead of negotiating this matter during the divorce or leaving it to a court to resolve. They may set amounts, waive support, or decide not to address this matter.

Support clauses may be challenged, especially if they are unfair or depart from Florida’s legal guidelines. Also, these may also be challenged if the couple’s financial situation is vastly different from when they entered the agreement.

Children

Rulings on child support and custody depend on the best interests of the child. Accordingly, any clauses addressing these matters in the postnuptial agreement may be invalid.

Sometimes, the postnuptial agreement may allow a spouse to stay in their martial residence if it is owned solely by the other spouse until a parenting plan is finalized.

Estates

Spouses may waive their elective share rights or apply those rights to marital property. These agreements can also help assure that children from previous relationships receive a share of their deceased parent’s estate.

Other clauses

Postnuptial agreements can include ladder provisions. These require that the spouse receiving support receives additional support or a lump sum payment at certain milestones like anniversaries.

Sunset provisions terminate certain conditions if for example, the couple remains matter for a specific time. These can end specific provisions or the entire agreement.

Business valuation methods are often included. Agreements may address whether a spouse will receive a share of the business.

Requirements

Agreements must be fair and reasonable. Full transparency of each spouse’s financial situation, including assets and debts, is required.

Grounds for invalidating a postnuptial agreement include:

  • Fraud
  • Duress
  • Unconscionability

Each spouse should have an attorney assist them with negotiations and drafting. Lawyers can help assure that the agreements are equitable and comply with Florida’s legal requirements.

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