People often harbor the misconception that without a prenuptial agreement, all income and assets acquired during marriage automatically become marital property. However, that’s a partial truth. With postnuptial agreements, you can stipulate specific rights to property, offering an effective solution to this quandary.

Couples execute a postnuptial agreement, a written contract, after marriage. This agreement outlines the settlement process of their affairs and assets in case of a divorce. But why exactly do couples opt for postnuptial agreements? Three reasons stand out:

Why do couples enter into a postnuptial agreement?

There are three main reasons why people enter postnuptial agreements.

1. Asset protection in case of divorce: This often tops the list of reasons. It’s crucial that the agreement provides a clear division plan for assets in the event of a divorce.
2. Asset distribution upon death: The agreement can set terms for asset allocation if a party passes away.
3. Clarifying marital obligations: The contract can stipulate who bears specific expenses during the marriage, such as mortgage payments.

Florida’s Postnuptial Agreement Requirements:

The State of Florida does not have a particular form. Indeed, some courts have given rulings where they consider oral postnuptial agreements valid and enforceable. See Kersey v. Kersey, 802 So. 2d 523 (1st DCA 2001); and Walz v. Walz 652 So. 2d 929 (Fla. 1st DCA 1995). However, it is strongly encouraged to put the agreement in writing.

Specific clauses should be included in the agreement so that the parties’ intentions can be easy to identify in an action for enforcement. Any waiver of rights in the marital property must be clear and specific. See Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004). A written agreement will be extremely useful in proving such a waiver.

What cannot be waived in Post-Nuptials:

Post-nuptial agreements may not waive child support, child custody, or child visitation.

Is it possible to modify or terminate a postnuptial agreement in Florida?

Yes, it is. The Florida Supreme Court has listed two grounds for revocation or modification:

1. Fraud, deceit, duress, coercion, or overreaching the challenging spouse.
2. Proving that the contract is unfair or unreasonable under the circumstances, considering the parties’ relative situations – age, health, education, and financial status.

Once the agreement is found to be unreasonable, a presumption arises that there was either concealment or lack of knowledge by the challenging spouse at the time of the agreement. The burden will shift to the defending spouse who may rebut this presumption in one of two ways.

1. First, he/she may prove full and frank disclosure of assets to the challenging spouse prior to the signing of the agreement.
2. Second, it may be shown that the challenging spouse had general and approximate knowledge of the character and extent of the marital property sufficient to obtain a value by reasonable means of the assets and income of the parties.

Conclusion

The legal process can get difficult, which is why we always recommend that you seek the assistance of counsel; or at least have a consultation. Schedule a consultation with one of our attorneys today to review the issues of your case, the legal options you may have, and certain rights that pertain to your unique situation.

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