When you hear “marital agreement,” you might think first of a pre-nuptial agreement. However, there are several types of marital agreements, such as: premarital agreements, postnuptial agreements, separation agreements, and property settlement agreements.
In Florida, a premarital agreement is enforceable so long as there was full disclosure, its terms are fair, and both parties voluntarily entered the agreement.
A premarital agreement (otherwise known as “prenuptial” or “antenuptial”) is a contract entered before the marriage, containing terms for the division of property, spousal support, attorney’s fees, and sometimes waiver of probate rights. A premarital agreement must be in writing and signed by the parties to be charged, as premarital agreements are subject to the statute of frauds.
To be legally enforceable both parties must make full disclosure and have a full and complete understanding of the agreement. The Parties must have had the opportunity to seek independent counsel prior to entering this type of agreement. The most frequent mistake couples make is signing the agreement just before the marriage, which may set the parties up for a claim of duress or coercion invalidating your premarital agreement. To prevent invalidating your pre-marital agreement the law requires that it be entered into with sufficient time before the marriage to appropriately contemplate the consequences of this type of agreement (some states specify the amount of time others merely require a reasonable amount of time). As with all enforceable contracts, consideration is required. A valid marriage is sufficient consideration to render a premarital agreement enforceable.
Terms regarding children may be invalid even when you have an otherwise enforceable agreement. This happens when a term may adversely affect a child’s right to support or pre-determine custody because Courts have a primary purpose of ensuring all agreement involving children are in the best interest of the child(ren).
Same Sex Agreement
Florida now recognizes same-sex marriage and enforces pre-marital agreements between same-sex couples as it would any marriage, which requires full disclosure, terms are fair, and voluntarily entered.
Postnuptial agreements are made between spouses during the marriage, entered into in contemplation of continuing the marriage. Just like a prenuptial agreement, a postnuptial agreement requires consideration, which is satisfied with the mutual exchange of promises. Postnuptial agreements may include property division, spousal support, and sometimes child or custody (so long as child support or custody terms do not adversely affect the child). BEWARE, there is a split of opinion with the Florida courts on enforceability for public policy reasons as encouraging divorce. However, the argument for enforcement is that such agreements are in contemplation of continuing the marriage. Please see an experienced attorney in your area if you are contemplating a post-nuptial agreement in continuation of marriage.
Separation agreements are made between a husband and wife in contemplation of divorce. These agreements may include property division, spousal support, child support, custody, and visitation. Separation agreements are elevated to final decree upon final judgment. Just like with postnuptial agreement, as long as the agreement is fair and based on full disclosure and do not adversely affect a child’s rights, they are enforceable. BEFORE YOU SIGN any separation agreement, please have an experience attorney review your agreement. The court will typically uphold an agreement even where the bargain is unfair. So, make sure it is an agreement that you can live with BEFORE YOU SIGN.
Property Settlement Agreements
Property settlement agreements settle economic and property division of marital estate. Settlement agreements are entered into prior to a final court decree with the intention that such agreement will be the final disposition of both real and personal property between the parties.
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