Marital agreements include premarital agreements, postnuptial agreements, separation agreements, and property settlement agreements.
In Florida, a premarital agreement is enforceable if 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.
As with all enforceable contracts, consideration is required. A valid marriage is sufficient consideration to render a premarital agreement enforceable.
Any terms that may adversely affect a child’s right to support or pre-determine custody are unenforceable.
Same Sex Agreement
Florida does not recognize same-sex marriage. However, it is un clear whether Florida will enforce a same-sex agreement containing terms akin to a pre-marital agreement. At least one Florida court has enforced such an agreement finding there was consideration and the agreement, in itself, did not violate public policy. Posik v Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997).
Postnuptial agreement are made between a husband and wife 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). Unlike prenuptial agreements, postnuptial agreements are not subject to the statute of frauds unless the subject matter falls within the statute of frauds.
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.
Property Settlement Agreements
Property settlement agreements settle economic and property division of martial 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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