There are many pros and cons to signing a prenuptial agreement or a postnuptial agreement. A prenuptial agreement is an agreement two people sign before they marry. A postnuptial agreement is a marital agreement signed by spouses after they are married. Both prenuptial and postnuptial agreements seek to avoid divorce contests. Both types of agreements should address the division of the marital property and alimony. The prenuptial agreements and postnuptial agreements generally do not cover child support because that issue is based on the best interests of the children – and not the best interests of the parents.
Potential spouses and married spouses should work with an Indian River County family lawyer when negotiating and signing a prenuptial agreement or a postnuptial agreement. The lawyer can explain the property division laws, the alimony laws, and the laws regarding prenuptial and postnuptial agreements.
Premarital agreements are another way of saying prenuptial agreements.
Discussing a prenuptial agreement
It’s not an easy matter to discuss a prenuptial agreement. Many people feel like the discussion means a partner thinks that the marriage might not last. In short, prenuptial agreements are not romantic.
Generally, prenuptial agreements are useful when one or both spouses is entering into a second marriage and may have obligations from the first marriage or reservations based on the failure of the first marriage. People usually also consider prenuptial agreements if there is a significant lack of balance between the assets and income of one spouse and the assets and income of the other spouse.
What are some of the considerations in a prenuptial agreement?
Some of the benefits of a prenuptial agreement (prenup) are:
Prenuptial agreements have many potential benefits.
- People who are about to wed may also consider a prenuptial agreement if one of the spouses owns a business.
- Prenuptial agreements can also address liability issues such as student loan obligations, credit card debt, medical care debt, and other debts.
- When older Florida residents wed, the prenuptial agreement may be useful for estate planning purposes
Prenuptial agreements can be used to determine:
- Each person’s rights and duties regarding any property each or both owns – “wherever acquired or located.”’
- The “right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property”
- How property is disposed of on divorce, separation, or death
- “The establishment, modification, waiver, or elimination of spousal support”
- Other listed provisions
There is no requirement to sign a prenuptial agreement. Your beloved will then have to decide whether refusing to sign the prenup is a strong enough reason to call of the wedding.
What are some of the pros of prenuptial agreements?
According to The Spruce, a practical home publication, some of the advantages of prenuptial agreements are:
- A prenup forces couples to examine their financial needs, goals, and expectations
- Prenups can help clarify inheritances and gifts
- It’s best to discover financial problems before the marriage than after the marriage
- A prenup can protect children from a prior marriage
- Prenuptial agreements can protect businesses either spouse has before the marriage. Business plans can help clarify who controls the business in case of a divorce
- A prenup can clarify which assets children get in the event of the death of the spouses
Most importantly, a prenuptial agreement is useful to avoid a divorce contest.
The cons of prenuptial agreements
- Many men and women think prenuptial agreements are a sign the marriage will fail even before it starts.
- Prenuptial agreements are a sign of mistrust
- Premarital agreements are signs that the spouses aren’t sharing their life together
What are the requirements for a prenuptial agreement in Florida?
Florida Statute Section 61.079 provides that the following conditions must be met for the prenuptial agreement to be valid:
- Both parties (the spouses who are about to marry) must voluntarily sign the prenuptial agreement
- The prenup must be in writing
- The agreement can’t waive certain legal rights – unless the waiver is made with informed consent
- The agreement becomes enforceable when the parties marry
- A premarital agreement is “is enforceable without consideration other than the marriage itself."
- The agreement was is due to fraud or duress. For example, a prenup may be invalid if one party fails to disclose his/her assets or fails to disclose the proper value of any asset.
“If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.”
Any changes to the premarital agreement must be in writing.
Understanding Postnuptial Agreements
Spouses who were just married and spouses who have been married for decades and everyone in-between can negotiate and agree to a postnuptial agreement. Postnuptial agreements generally cover the same issues as prenuptial agreements.
Postnuptial agreements may become something to consider as the spouses develop assets, develop their own businesses, or begin to realize that the marriage isn’t working. There may also be some other reasons to consider a postnuptial agreement such as tax issues and elderly planning issues.
How are prenuptial and postnuptial agreements enforced?
Both pre and postnuptial agreements come into play when spouses divorce. These agreements can help avoid the time, expense, and bitterness of protracted contested divorces.
The agreements can also reduce the issues that need to be contested. Generally, the agreements control the equitable distribution and alimony part of a divorce. They may also control child parenting plans. The court normally needs to monitor child support to ensure the child’s needs are a priority.
Our Family Law Attorneys serve Sebastian, Vero Beach, and all Indian River County communities. The law offices of Lulich Attorneys & Consultants help people contemplating marriage, people who are happily married, and people thinking about divorce address their marital concerns - including equitable distribution, custody, child support, and alimony. Call for your Free Consultation today! Our law firm has a proven track record of helping women and men address their family law issues.
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