Miami Prenuptial & Postnuptial Agreement Attorney
Family Law Specialists Serving Miami and South Florida
Are you planning to get married and wondering whether a prenuptial agreement is right for you? Are you in the process of seeking a divorce but dealing with concerns about the enforceability of a prenuptial agreement? Are you currently married but concerned about whether your marriage will last in the long term, and want to learn more about the pros and cons of entering into a postnuptial agreement? Read more or contact our experienced Miami Prenuptial & Postnuptial agreement attorneys today.
Understanding Premarital Agreements in Florida
Prenuptial agreements, also referred to as premarital agreements or antenuptial agreements, entered into on or after October 1st 2007 are governed by the Florida Uniform Premarital Agreement Act. Prenuptial Agreements entered into prior to October 1st 2007 are governed by Florida case law.
A Prenuptial Agreement is an agreement between prospective spouses made in contemplation of marriage and is effective upon marriage.
Prenuptial agreements allow soon-to-be spouses to contract about many different issues that may arise during a marriage or in the event of a divorce, including but not limited to the following:
- How each spouse’s premarital assets and any appreciation on the premarital assets will be distributed in the event of a divorce,
- How the assets acquired by either party during the marriage will be distributed in the event of the divorce,
- Whether either spouse will be entitled to alimony and the amount of alimony upon a divorce,
- The rights of each party to manage, encumber, dispose of or control assets during the marriage,
- The obligation of one or both of the spouses in regards to certain assets or liabilities,
- Other matters that do not violate the law or public policy.
There are some issues that cannot be determined in a prenuptial agreement such as parental responsibility and a timeshare schedule which must be based on a child’s best interest at the time of a dissolution of marriage. Likewise, child support which is based on the parties’ income and the timeshare schedule at the time of the dissolution of marriage cannot be determined in a prenuptial agreement.
Postnuptial Agreements in Florida
A Postnuptial Agreement is an agreement entered into by two spouses after they marry. There are instances in which a postnuptial agreement is utilized as an estate planning tool. There are also situations in which marital issues exist, and both spouses decide they want to provide for a distribution of assets and liabilities during the marriage or in the event of a divorce and/or make decisions regarding alimony in the event of a divorce.
Enforcing a Premarital Agreement or Postnuptial Agreement in Florida
There are some situations in which a premarital agreement may be unenforceable. A prenuptial agreement entered into on or after October 1st 2007 is not enforceable if the party contesting enforcement proves:
- The party contesting enforcement did not execute the premarital agreement voluntarily,
- The premarital agreement was the product of fraud, duress, coercion or overreaching, or
- The prenuptial agreement was unconscionable when it was executed and before the execution of the agreement, that party:
- Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
- Did not voluntarily and expressly waive, in writing, any right to the disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
- Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
A Premarital Agreement entered into prior to October 1, 2007, or any Postnuptial Agreement, may not be enforceable if a spouse contesting the enforcement proves:
- The agreement was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching, or
- The agreement makes an unfair or unreasonable provision for the challenging spouse, given the circumstances of the parties. To establish that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ situation, including their respective ages, health, education, and financial status.
Once the challenging spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge by the challenging spouse of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse, who may rebut these presumptions by showing there was either:
- Full and frank disclosure to the challenging spouse by the defending spouse before the signing of the agreement, or
- A general and approximate knowledge by the challenging spouse of the character and extent of the property sufficient to determine a value by reasonable means, as well as general knowledge of the income of the parties.
Contact a Miami Prenuptial & Postnuptial Agreement Attorney for Help
At Foster•Morales Sockel•Stone, we have skilled attorneys with years of experience handling all aspects of prenuptial and postnuptial agreements. Contact us for more information.