Pre and Post-Nuptial Agreements
WHAT ARE PRE AND POST-NUPTIAL AGREEMENTS
A pre-nuptial agreement is an agreement you enter into before marriage to spell out property division, alimony and other issues in the event of a divorce; and also what happens to property in the event of the death of one of you. A post-nuptial agreement is basically the same agreement entered into after marriage.
WHAT PROCESS TO USE TO ARRIVE AT AN AGREEMENT
As for a divorce, the process of how you develop a pre-nuptial agreement or post-nuptial agreement can be as important as the many financial and other issues to address in preparing the agreement. One option is for you retain an attorney to prepare the agreement for you, and then present the agreement to your fiancé/spouse for his or her review. The two of you can sit together with a mediator to arrive at an agreement. Another option is a process called collaborative law in which each of you has a collaboratively trained attorney, and you have a meeting or meetings among all of you to work out the details of the agreement.
When you are developing a pre-nuptial agreement, usually or at least many times your relationship with your fiancé and wanting a positive relationship are as important as the legal provisions of the agreement. If there is any significant disagreement between the two of you regarding the agreement, in my opinion it is often best to use a collaborative law process with the meetings led by someone we call the MHP – i.e. a mental health professional trained in collaborative law to help people negotiate through issues. The process is described more in the collaborative divorce and co-mediation pages on this website, but it is basically a process which gives each person the chance to express their concerns regarding an issue or the provisions of an agreement, and then together, with the help and structure provided by the team (i.e. your attorney and the MHP), arrive at something that works for both of you.
If you are already basically in agreement, you probably won’t need the added support of the collaborative law process. If you are fairly certain of the provisions you want for the agreement, one of you can retain an attorney to prepare the agreement. Many times you won't fully know all of the options for the agreement until you consult with an attorney, and one option to consider is for the two of you to go together to a mediator to develop the agreement. A mediator does not represent either of you as your attorney and can not give you legal advice -- for example give one of you legal advice as to what to do, but a mediator is permitted to share information with you from his or her fund of knowledge -- for example describing options for the provisions of the agreement.
ISSUES TO ADDRESS
Some of the issues to be addressed in a pre-nuptial agreement or post-nuptial agreement are: what happens to any increase in value of “pre-marital” assets, and whether it is possible for these asset to ever become marital assets; how are assets and debts acquired or incurred during the marriage treated – usually assets and debts arising during the marriage are marital but a pre-nuptial agreement can provide that any asset or debt in one spouse’s name remain separate rather than marital; what happens to retirement account amounts accrued during the marriage; what assets does each spouse take in the event of a divorce; what are the provisions for alimony or for what happens to the home where you lived during the marriage, and when does one person have to move out.
Another significant set of issues for a pre or post-nuptial agreement is what happens in the event of a spouse's death. There are estate laws in Florida which provide for a surviving spouse receive a minimum statutory share of assets, but a pre or post-nuptial agreement can waive this provision and specify what each spouse receives.
There can be additional provisions also regarding children’s issue, temporary support while a divorce is pending and other issues unique to each situation.
ENFORCEABILITY OF THE AGREEMENT
A pre-nuptial agreement can be set-aside (i.e. found to not be enforceable) on the basis of fraud, duress or overreaching, or if it was not entered into voluntarily. Fraud covers situations in which one person deceives the other into entering the agreement by hiding assets or making other false representations to get the other to sign. Duress covers situations in which one person is put under extreme pressure to sign the agreement. Overreaching could include a situation in which one person convinces someone to sign a very unfair one-sided agreement, for example by promising to take care of them, making other promises, etc.
To avoid situations like this, there should be a sufficient period of time for each spouse to review the agreement before signing the agreement, and the agreement should be signed well in advance of the wedding. Although there can be times when both of you are in a similar financial situation now and have similar expectations for the future, often one fiancé or spouse has more assets or more earning potential, and in a sense there is one fiancé or spouse against whom the agreement might one day be enforced. It is important that the spouse who gives up any rights in the agreement has plenty of time to review the agreement themselves and the opportunity to review the agreement with an independent attorney they choose. Although it is not required for both of you to have the agreement reviewed by an independent attorney of your choosing, if there is some question raised in the future about the whether there was pressure to sign the agreement or overreaching, each spouse/fiancé having the agreement thoroughly reviewed by an attorney prior to signing can be important.
Another significant factor regarding the enforceability of a pre or post-nuptial agreement is full and accurate financial disclosure prior to signing the agreement. Accurate disclosure is relevant to the issue of whether there was fraud or concealment; and shows that each fiancé or spouse was fully informed before signing the agreement. There is a statute in Florida regarding pre-nuptial agreements which provides that if an agreement is unfair, and even “unconscionable”, it is not necessarily unenforceable if the other person received full financial disclosure or waives in writing further disclosure.
One issue to keep in mind is that under current Florida law a Judge is not required to follow the provisions in an agreement regarding the amount of "temporary support" or temporary attorney’s fees - i.e. the amount of spousal support or temporary fees while a case is pending in court. There are some important provisions to include in an agreement, however, related to this issue.
In preparing a prenuptial or postnuptial agreement, it is important that your attorney is thoroughly familiar with the issues and options for the agreement, and also is experienced drafting legal contracts. I find that my background in the past working in a tax/business practice is a very helpful, in addition to the family law background, when I'm preparing a pre or post-nuptial agreement. Also important in my opinion, for example if you are preparing a prenuptial agreement, is selecting an attorney who will help to keep the process positive for you, and not contribute to unnecessary stress or conflict for you and your fiancé.
Call me at (954) 636-7498, or use the contact form on the website, and we can discuss a pre or post-nuptial agreement.