Post Nuptial Agreement in Florida

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A post nuptial agreement is a written agreement executed after a couple gets married, or have entered a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce. Post nuptial agreements are also known as post marital agreements and antenuptial agreements.  Post nuptial agreements must be in writing to be enforceable in Florida.

There are three main reasons for parties to create a post nuptial agreement. First, protect assets in the event of a divorce.  Second provide for the distribution of the parties’ assets in the event of the death of a party. For example, care for children outside of marriage in the event of the death of their father, but not the surviving spouse. Third, clarify the obligations of each party during the marriage. For example, the nuptial agreement may address who shall be responsible for certain expenses during the course of the marriage such as a mortgage.

Florida Statutes and case law provide that nuptial agreements that meet certain requirements will be considered enforceable. Florida post nuptial agreements require:

  1. Financial disclosure.
  2. Consideration. Each party must receive consideration.  In the case of a prenuptial agreement, the marriage can be considered the consideration.  In the case of a post nuptial agreement, mutual promises granting the parties respective rights is considered sufficient consideration.
  3. Properly executed by the parties. In addition, if the nuptial agreement contains ”testamentary provisions” (i.e. what happens upon the death of a spouse) the Florida post nuptial lawyer should confirm that the post nuptial agreement is executed with “Will Formalities.”  “Will Formalities” means in conformity with the requirements for a last will and testament. In a general and simple sense the requirement is that the Florida post nuptial agreement must be signed in the presence of two witnesses who must also sign in the presence of each other.
  4. Waiver of Equitable Distribution of Property and Interest in Marital Earnings and Appreciation of Separate Property. In general, absent a premarital agreement money earned during the marriage, and assets acquired are considered marital property.  Upon dissolution of marriage, and absent a Florida pre-marital agreement or Florida post marital agreement, Florida courts will follow the rule of “Equitable Distribution.”  Equitable distribution means assets should be divided fairly between the spouses.  A waiver of equitable distribution of property and interest in marital earnings and appreciation of separate property expresses the parties contrary intent to the general “Equitable Distribution” rule.
  5. Waiver of Alimony. If the parties intend that no alimony be paid in a Florida dissolution of marriage, the Florida antenuptial lawyer that drafts the document must include a Florida waiver of alimony clause. The Florida waiver of alimony clause should include all types of alimony, including rehabilitative, permanent, periodic, bridge-the-gap, and lump sum alimony. However, please note that in Florida, temporary alimony may not be waived.  Temporary alimony refers to alimony that is paid to a spouse during the Florida divorce proceeding.
  6. Waiver of Interest in Florida Homestead Property. This provision waives a party’s Florida constitutional right to homestead property.  Florida homestead property rights may only be waived “knowingly and intelligently.”  Thus, if each party intends to waive his or her homestead rights in the other party’s homestead property, the Florida post nuptial agreement attorney should provide in the agreement 1) the definition of homestead property in Florida; 2) the homestead rights that each spouse would have in the absence of the Florida antenuptial agreement; and 3) that each party knowingly and intelligently waives their Florida homestead rights.
  7. Waiver of Interests in Retirement Plans. Your Florida post nuptial agreement lawyer must ensure that any waiver of retirement benefits complies not only with Florida law, but with federal law, The Employee Retirement Income Security Act of 1974 (ERISA).
  8. Waiver of Rights Upon Death. This is a commonly used clause when a spouse has children outside a marriage. The clause waives a number of rights of a surviving spouse upon the end of a marriage by death of a spouse.  Your Florida anti nuptial agreement attorney should include language stating that each party waives the following rights upon the death of the other party: a) rights to elect against a Florida will; b) dower or curtesy rights; c) rights as an intestate heir; d) rights as a pretermitted spouse in Florida; e) exempt property rights; f) family allowance rights; g) homestead rights; h) right to qualify and serve as personal representative of the decedent’s estate or as Florida trustee of any trust created by the decedent.

There are of course a number of items that your post marital agreement lawyer can not address in a Florida post marital agreement. For example, by Florida Statute, post marital agreements may not waive child support, child custody, or child visitation.

In terms of formalities in order for the premarital agreement to be valid all meetings with the attorneys, the negotiations, and the execution of the prenuptial agreement should occur well in advance of the wedding in order to make it more difficult for a challenging spouse to assert duress or undue influence.  In addition, although not required by statute, the parties should obtain separate counsel with regard to their nuptial agreement. Separate representation can help refute a claim that the nuptial agreement was entered into under duress or as a result of undue influence.

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