Postnuptial agreements are contracts setting forth how a married couple wants to divide their assets in a divorce or if one of them dies. Although it might seem strange for a happily married couple to consider such issues, there are excellent reasons to do so. A dedicated marital agreements attorney can explain your options in detail.
One of the primary reasons for making a postnuptial agreement is to give the couple, rather than the courts, control over how they handle their property in the event a divorce occurs. A Boca Raton postnuptial agreements lawyer will advise a spouse about whether an agreement is fair and, if so, ensure that it is enforceable.
When to Consider a Postnuptial Agreement
The law gives spouses specific rights to each other’s property if one dies or if they divorce. Although the legal protections work well for many couples, sometimes a couple believes a different arrangement is fairer or more appropriate. Postnuptial agreements allow them to make these decisions before death or divorce.
Changes in the couple’s life often spur them to consider a postnuptial agreement. For example, if a spouse has a child from a previous relationship who becomes disabled, perhaps the other spouse will agree that certain assets should go to support the child. The other spouse would need to make their consent explicit in a postnuptial agreement. Similarly, if one spouse decides to give up their career to focus on homemaking or caretaking, the couple might agree on the value of that work to ensure appropriate credit for it if the couple later divorces.
Couples also might use a postnuptial agreement to prepare for a likely divorce. Although these agreements cannot cover child custody or child support, couples could use a postnuptial agreement to resolve issues of who gets to stay in the family home, disposition of property including pets, and other relevant concerns. Working with a Boca Raton attorney to develop a postnuptial agreement before the couple separates could ease and expedite the divorce.
Requirements for Postnuptial Agreements
When a Boca Raton couple decides to enter into a postnuptial agreement, they should each consult a local attorney to ensure it is enforceable. Although the law does not require each party to have their own attorney, doing so helps establish that each party knowingly and willfully entered into the agreement.
Like a prenuptial agreement, a postnuptial agreement must be in writing and signed by both parties. Each party must agree freely, without coercion or trickery. The agreement cannot be unconscionable, meaning that it cannot under certain circumstances unfairly favor one party over the other. Florida law imposes additional requirements to assure the validity of agreements a couple makes after marriage.
Couples contemplating a postnuptial agreement must disclose their assets, liabilities, and income, so the other partner can make a reasoned choice about whether to sign it. The parties could exchange recent tax returns, business valuation documents, brokerage statements, credit reports, appraisals, and any other information relevant to the parties’ respective financial positions.
A failure to disclose all relevant information may provide a legal basis for a court to void all or part of the agreement. A couple could make the financial documents they provided to each other part of the agreement so that the parties can prove they provided adequate disclosure to each other.
Waiver of Interest in Retirement Accounts
Couples who already have children from prior relationships often wish their retirement benefits to pass to their children rather than their current spouse. Due to federal laws, couples usually cannot waive rights to each other’s retirement accounts or pensions before marriage. However, they could use a postnuptial agreement to give up their rights to benefits under their spouse’s retirement accounts.
Sometimes, a prenuptial agreement contains a promise that the couple will enter into a postnuptial agreement waiving retirement benefits. However, the parties must sign the actual waivers and releases after marriage for them to be valid under the law.
Every valid contract requires the parties to offer consideration. Consideration is something one party offers in exchange for the thing the other party offers. In a premarital agreement, the marriage is the consideration. If the parties are already married, the law at Florida Statutes § 61.079 says marriage cannot be adequate consideration. A postnuptial agreement will not be valid unless each party gives up something to get something else. The agreement must explicitly state the consideration each party is offering, or it may be voidable. A Boca Raton postnuptial agreement attorney is prepared to review your agreement and ensure its compliance with relevant laws.
Trust a Boca Raton Attorney to Craft an Enforceable Postnuptial Agreement
If you and your spouse have concerns about where your assets might go if one of you dies or if you divorce, consider a postnuptial agreement. Setting forth your preferences now can save time and legal bills later.
A Boca Raton postnuptial agreement lawyer could provide wise counsel to help you develop a contract that will stand up in court. Call today to schedule a consultation.