Prenuptial and Post Nuptial Agreements
A common and increasingly popular tool designed to prevent litigation if a marriage should break up is what is called a “prenuptial agreement”. As the name suggests, a prenuptial agreement is prepared before the parties marry to provide for a predetermined, amicable settlement if the marriage ends in divorce or death. A similar agreement can be entered into after the marriage, and in such case, it is called a postnuptial agreement. In 2007, Florida enacted a statute that validates and clarifies the application and enforcement of such agreements. Parties are choosing to enter into these agreements to clearly define, in advance, the terms and conditions for the distribution of the parties’ assets and liabilities, as well as addressing other monetary and non-monetary issues in the event of a divorce or the death of party. By entering into those agreements, parties can limit their exposure to pay alimony and they can clearly define which assets will remain non-marital, to include any appreciation on those assets. Premarital and post-marital agreements can be among the most complicated agreements known to the law because they require anticipating many different, and sometimes complicated, issues. The circumstances, issues, and objectives of every case are different. Every such agreement must be custom tailored to fit the particular needs of each client. There is no such thing as a standard premarital or postmarital agreement form, since there are many options to consider. It is important to have a clear understanding of your goals and objectives, but equally important to keep your mind open to alternative arrangements that the law and your attorney’s creativity may allow or suggest.
As a general rule, issues relating to minor children, such as parental responsibility, child support, and time sharing cannot be predetermined in a prenuptial or post-nuptial agreement, since the Court has the ultimate power to decide what is in the best interest of the minor children. A premarital or post-marital agreement must be in writing, and for a premarital agreement, the marriage is the only consideration needed to create a binding agreement. Any amendment, revocation, or abandonment of a premarital agreement must be in writing and signed, but no additional consideration is needed. Consideration must be clearly identified and defined in a post-marital agreement.
Both pre-nuptial and post-nuptial agreements require full financial disclosure exchanged between the parties prior to signing the agreement. At Vilar Law, P.A., we recommend attaching schedules as exhibits to the agreement identifying each party’s respective assets, liabilities and income. Lack of financial disclosure is the number one reason prenuptial and postnuptial agreements are challenged and invalidated, so it is imperative that financial disclosure is exchanged, and it be fully transparent. We also recommend that each party be represented by legal counsel in the negotiation and signing of an agreement. If you are contemplating marriage and wish to enter into a prenuptial agreement, it is advisable that you contact an attorney as soon as possible to give ample time to draft, negotiate and finalize a pre-nuptial agreement and exchange financial disclosure with the other side prior to a marriage date. We recommend contacting our firm no less than 60 days prior to your intended date of marriage and signing a prenuptial agreement no less than one week prior to your intended marriage date. Postnuptial agreements do not require such a strict timeline, but both agreements require a signing ceremony wherein the parties and their respective attorneys sign together, in person and in the presence of a notary and witnesses. We recommend that the signing ceremony by videotaped or transcribed by a court reporter.
Dealing with end-of-marriage issues when you are preparing for your marriage can be difficult and awkward, and needs to be handled with delicacy and tact. At the law office of Vilar Law, P.A., we have experience in dealing with these sensitive issues so you can worry about what is important to you.
This is probably your first time dealing with these important issues, but it certainly is not ours...