Prenuptial and Postnuptial Agreement Lawyers
Just as marriage is a binding contract to create a life together, a prenuptial agreement is a couple’s agreed-upon approach to a future no one can foresee. A well-crafted prenuptial agreement protects both husband and wife should the marriage come to an end. If you are getting married, you and your spouse may benefit from a prenuptial agreement, regardless of your income or wealth, which will undoubtedly grow through the years.
A prenup traditionally addresses issues such as division of marital assets and alimony in case a divorce occurs. A prenup is a good way to deal with the distribution of significant financial assets or debts that either spouse brings to the marriage. Addressing such matters before marriage is a mark of your commitment to each other’s well-being, no matter what may come.
A knowledgeable Florida prenuptial agreement attorney at Chiumento Dwyer Hertel Grant is ready to help you set out in an orderly fashion how you and your spouse will address issues that may arise later in your lives together. A prenuptial or postnuptial agreement can save you both from having to reach accord on difficult decisions after you have decided to end a marriage. An agreement made today may save you anguish at a time of heightened emotions and stress later.
Contact Chiumento Dwyer Hertel Grant to discuss your needs with an attorney who has drafted numerous prenuptial and postnuptial agreements for couples in Palm Coast, Ormond Beach and the surrounding areas of South Florida. Call us today at (386) 445-8900 or contact us online to schedule your confidential consultation.
What are Prenuptial and Postnuptial Agreements?
Prenuptial (before marriage) and postnuptial (after marriage) agreements are first and foremost contracts. They spell out how a couple will divide their assets in the event their marriage is dissolved. The agreement also may delineate certain financial responsibilities during the marriage.
Typically, a prenup or postnup protects significant assets one spouse brings to the marriage, such as:
- Real estate, such as the primary residence or a vacation home
- A family business
The pre / postnup may stipulate that the spouse who owned certain assets such as a family business or residence will retain ownership in the event of a divorce. It might also say, for example, that the other spouse assumes a percentage of ownership at certain milestones in the marriage such as after five or 10 years of marriage. This could address a family business that the other spouse is expected to support through their time and effort during the marriage, for example.
Such an agreement might specify certain financial responsibilities during the marriage, such as which spouse will deal with investing and tax return preparation and who will manage the household budget. If, for example, one spouse plans to pursue an advanced academic degree, a marital agreement might spell out the responsibility for tuition and other costs, a timetable for graduation, and agreement to seek and maintain employment in the field of the degree.
Prenups and postnups cannot address child support or custody of existing or future children. The courts are required to consider the best interests of a child when approving a parenting plan and calculating child support. This cannot be determined beforehand. However, a prenup may include provisions for a child with special needs or for whom assets are being held in trust.
Any couple may enter into a prenup or postnup. A prenup is especially beneficial if one or both spouses have considerable assets, income or pending inheritance when entering the marriage. If there are children from a previous marriage, a prenup could ensure that their inheritance is excluded from assets that would be divided in a divorce.
How a Postnup Differs from a Prenup
There are many reasons a couple may decide after being married that they should draft a legal agreement about division of assets and other issues in case of a divorce. Sometimes, a couple simply waits until after they are married to sit down and go through the process together. Often it is because a couple has worked through a rough patch and decides to create this insurance for themselves while they are in a good space.
The main difference posed by a postnuptial agreement is that many of either spouse’s assets become marital property the moment they sign the marriage license. These might include stock options earned during the marriage or real estate purchased since marriage. A postnup must take care to address all marital assets.
Additionally, a court will sometimes put less stock in a prenup on the belief that a person has less room to come to the most beneficial agreement for themselves when bargaining with their spouse. A postnup needs to be as fair, equitable and straightforward as possible.
In a contentious divorce, one spouse may challenge a prenup or postnup. It is possible that a judge could throw out some or part of an agreement that was not drafted properly.
Florida law requires that prenuptial and postnuptial agreements meet certain criteria to be valid and binding.
These criteria include:
- The agreement must be in writing. Oral prenups and postnups are not enforceable.
- The agreement must be witnessed and notarized.
- Parties to the agreement must be married. A prenup does not become effective until the parties are legally married.
- The agreement must be voluntary. A court will rule an agreement invalid if one spouse can prove that he or she signed it due to coercion, force or undue influence.
- The agreement must be equitable. An agreement that is grossly biased in favor of one spouse would be unlikely to withstand a challenge. For example, an agreement cannot be drafted to waive either spouse’s right to alimony after a divorce.
Drafting A Fair and Valid Prenup / Postnup in Florida
A couple interested in entering into a prenuptial or postnuptial agreement should begin by exchanging financial information so that both are fully aware of each other’s finances before drafting an agreement.
Each prospective spouse should list:
- Assets held in their name
- Anticipated assets, such as inheritance (family home, family business or partnership, trusts), employment-based stock options.
- Debts, including student loans, mortgages, credit card debt.
- Obligations from prior marriage (such as child support or alimony).
The couple should discuss how they plan to manage their finances during their marriage, the role money plays in their lives and what their financial goals are. They should decide whether they want to keep finances separate or co-mingle them in joint accounts. If one spouse is bringing significant debt to the marriage, they need to discuss how they’ll handle paying off the debt. Talk about your expectations should one spouse lose his or her job.
The goal is to understand each other and come to agreement as to how you’ll address differences.
An experienced attorney can help you work through the common provisions of a prenup and see whether you can agree on them, such as:
- Each spouse’s separately owned property will remain theirs.
- Each spouse waives his or her legal right to claim a share of the other spouse’s separate property at death.
- Each spouse will pay their own premarital debts, or you will agree to pay them down together.
- How you will buy and own property while married. This is particularly important if one spouse brings significantly more income or assets to the marriage that might be devoted to purchases.
- The rights of each spouse if one spouse contributes to the continuing success and growth of the other’s education and employability or business or professional practice.
- Other considerations regarding your finances, such as how household expenses will be paid.
Once you have a draft agreement in hand, each spouse should retain his or her own lawyer to review the agreement to ensure it is fair, equitable and legally sound if enacted as a contract. Each of you should engage separate attorneys whose practices include family law and/or estate planning, and who have experience with prenuptial and postnuptial agreement counseling. The four of you might meet to smooth out any disagreements or ideas in your draft agreement.
Conversely, if you are having trouble getting started, an attorney from Chiumento Dwyer Hertel Grant can meet with you both to analyze the types of assets and needs you have and help you begin work on a legal agreement that best serves your family.
Once a final agreement is reached, our law firm can prepare a proper document to be signed, witnessed and notarized, and you’ll have an agreed-to marital plan as you begin your life together.
Contact Our South Florida Marital Agreement Attorneys
If you and your spouse are considering a prenuptial or postnuptial agreement, contact Chiumento Dwyer Hertel Grant to ensure you and your assets are protected as you move forward. Our family law attorneys have the skills and experience to help you prepare and/or negotiate marital agreements that are comprehensive, equitable and legally solid.