If you are married or getting married in the near future, you should be thinking about getting prenuptial or postnuptial agreement. Money and communication are typically two of the top three reasons people get divorced. Where one or both spouses have significant assets before they get married, the spouses may create prenuptial agreements to protect those assets. Similarly, if the spouses obtain a large amount of assets during the course of their marriage, they may enter into a postnuptial agreement as a way of telling the court how they wish such assets to be treated in the case of a divorce even where a divorce was not started.
A prenuptial agreement is made before the marriage. In this type of agreement, the couple determines how they will divide their assets should the marriage ever come to an end. Prenups aren’t only meant to establish how a couple’s assets will be divided after divorce. These agreements also spell out financial distributions in case of a spouse’s death, which is for the most part important for couples with children from previous marriages. Spouses can amend or revoke their prenuptial agreement at any time after they are married. It’s also important to understand that prenups are not guaranteed to be enforced and may be discarded by the courts if they are signed under duress or don’t meet certain requirements so it’s crucial to have an experienced attorney draft them.
A postnuptial agreement is similar to a prenuptial agreement. However, a postnuptial is drafted after the marriage has been legally establishes, at which point your property is considered marital property. Many couples opt for postnups simply because they ran out of time to sign a prenup. Several see the procedure as an uncomfortable, stressful process that is better being put off until after the wedding. However, couples who have already been married for five, 10 or even 20 years, can also decide to sign a postnup.
Without a pre or postnuptial agreement Florida courts will follow the equitable distribution principles, and the court will enforce an “equitable” distribution of the property and assets of the marriage based on the circumstances of the parties. Prenuptial’s and postnuptial’s should therefore:
• Define what property is separate property and marital property
• Protect your separate property or eliminate all your rights to property
• Ensure debt protection if one spouse comes to the marriage with debt
• Protect the financial stability of your children
• Protect your business and who will be running it
• Establish, modify, waive, or eliminate spousal support
• Make a will, trust, or other arrangements to carry out the provisions of the agreement
• Specify ownership rights in and disposition of the death benefit from a life insurance policy
• Specify the right to act as an executor and administrator of your or spouse’s estate
• Reduce conflicts and save money in case of a divorce
• Clarify special agreements and establish procedures and ground rules for deciding future matters
Prenuptial and postnuptial agreements are often criticized but the reality is that they are simply misunderstood. They are an ideal way to protect each other from potentially making decisions in the future from a place of anger and resentment. Divorce is often considered one of the most traumatic events in a person’s life. However, if you can quickly and amicably handle the financial details even before you marry or decide to divorce it can remove some of the pain from the process.
Patricia Elizee is the managing partner of Elizee Law Firm, P.A. The firm focuses on Immigration and Family Law cases. Ms. Elizee can be reached at (305) 371-8846. The law firm is located at 1110 Brickell Avenue, Suite 315, Miami, Florida 33131.
