Most couples in Florida who are considering marriage have heard of prenuptial agreements. Once a rarity, these agreements are becoming more common as couples marrying for the second time, or more, want to protect their personal assets from an unfair property settlement in a divorce. Not surprisingly, a new kind of marital agreement is also becoming more popular – the “post-nuptial agreement.”
As the name suggests, post-nuptial agreements are signed after the marriage becomes official. Like pre-nuptial agreements, post-nuptial agreements are used to ensure that one or both spouses retains complete control over their personal assets. Post-nuptial agreements are essentially contracts and must therefore meet Florida’s requirements for contracts to be enforceable. A post-nuptial agreement must be in writing, signed by both parties and witnessed by a notary public. Both parties must consent to the drafting and execution of the agreement, and the agreement must be fair and not the result of unfair influence by one spouse. Also, both spouses must make a complete and accurate disclosure of assets prior to the execution of the agreement.
Post-nuptial agreements can cover a variety of topics. The most common provision determines how the spouses’ individual property will be distributed in the event of death or divorce. Because Florida is an equitable distribution state, a person without a pre- or post-nuptial agreement may lose important assets if the court determines that such a distribution is necessary to achieve a fair and equitable resolution. A post-nuptial agreement can also be used to waive or limit the amount of alimony paid by one spouse to the other.
Each party should be separately represented by an attorney during the negotiation, drafting and execution of a post-nuptial agreement. A post-nuptial agreement that is the result of unfair pressure by one party can usually be voided by the court.