Prenuptial/Postnuptial Agreements


If each or either party is bringing assets or liabilities into a marriage, there needs to be a discussion as to how those assets (or liabilities) will be handled when merged with marital property.  A written agreement before marriage, a prenuptial agreement (“prenup”), serves as a contract signed by the parties to disclose the good and bad financial situation coming into marriage.  On certain occasions, an agreement can be entered into after the marriage.  In this case the agreement is called a post-nuptial agreement (“postnup”) and serves the same type of interest as a prenuptial agreement.

Have an experienced attorney review your situation to determine if a prenuptial agreement is needed before you are married.  It is best to have an attorney assist you in the preparation of the prenuptial agreement.  You want to make sure that the agreement is less likely to be successfully challenged and that it states both parties’ intentions clearly and concisely.  Full disclosure of the assets (the good) and the liabilities (the bad) being brought into the marriage are fully disclosed in a well phrased agreement.

Prenuptial and post-nuptial agreements are a good investment.  A prenuptial agreement sets out what happens after you are married and should a divorce occur.  It gives each party the knowledge of what will happen with an asset should a divorce occur.  Situations dealing with division of property and debt, alimony, and support are decided by this agreement.  A prenuptial or post-nuptial agreement may be a good investment and plan for what happens during marriage and in the event of divorce.  Usually these documents determine how property is divided should a divorce occur.  Often a prenuptial or post-nuptial agreement makes a situation of divorce far less costly.  However, the agreements must be appropriately worded and certain precautions must be taken so that both parties are on the same footing when the documents are drafted.

If accurately drawn by an experienced attorney, prenuptial and post-nuptial agreements can keep litigation expenses in check due to the fact that the issues that the court must determine have been previously agreed upon by the parties.

Bare in mind that a prenup is an obstruction to a spouse receiving what you do not want to give.   If properly drawn up by an experienced Florida attorney a prenuptial agreement cannot be reasonably challenged, and stands a much better chance of not being successfully attacked. Do not wait to enforce your rights under the prenuptial agreement as there may be a deadline pursuant to Florida statutes.

There are certain rights that cannot be waived by a prenuptial or post-nuptial agreement.  Those rights include the right to seek child-support if a child is born during the marriage and a party cannot waive the right to seek from the other party attorney fees and temporary alimony while the divorce in Florida is being litigated.

Plan ahead if you decide to seek a prenuptial agreement.  Your spouse will need sufficient time in advance of the wedding to review, consider, and have an attorney review, the agreement.  Always have written proof that the agreement was provided to the intended spouse well in advance of the wedding.  Usually it is wise to email the draft agreement and retain the email as proof for future need.  Do things appropriately during the process of negotiating a prenuptial agreement so any contest to it upon divorce can be invalidated.

If you are unsure of a consequence of a financial action during the marriage, consult with your attorney.  Also, consult with your tax advisor or estate planning advisor as to the consequences of a prenuptial agreement prior to signing the agreement.

Should you relocate outside the state of Florida after signing the agreement, you may need to revise the agreement to be in compliance with the laws of another state.