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Can A Postnuptial Agreement Serve As An Alternative To Divorce?

Many people do not realize that you do not necessarily have to enter into an agreement prior to getting married (otherwise known as a prenuptial agreement). To be sure, you also have the option of entering into a postnuptial agreement once you are already married–even some years after you’ve been married.

A Means to Try Out Separation

Postnuptial agreements can be entered into at any point after getting married, and in this way, can potentially serve as an alternative to divorce. By working out financial and asset-related details, it can sometimes clear the air for couples to work on other issues in their marriage, or even try out separation without going through a formal divorce (particularly since Florida law does not provide an avenue for formal, legal separation).

Typically postnuptial (or “postmarital”) agreements are used when divorce is not imminent. If divorce is imminent, Florida law provides for entering into what is termed a separation agreement. Specifically, Florida law states that the court may enforce an antenuptial agreement in order to arbitrate a dispute in accordance with the law and both parties. Florida courts do not distinguish between prenuptial and postnuptial agreements when it comes to determining the validity of these agreements.

A Way to Feel Protected Re Unforeseen Circumstances

These agreements can often help the parties feel more protected in the marriage, particularly if there is an impediment to obtaining a divorce, or a living situation that does not lend itself to being physically able to live apart/separate right away (due to sharing children, etc.). It can also be helpful if one spouse is undergoing a mental illness and the other spouse wants to protect children and/or property until the suffering spouse can get the proper help.

An Act to Safeguard Business and Equity Interests

Postnuptial agreements can also be helpful in safeguarding businesses and protecting inheritance in case divorce ever becomes an issue. It can also make sense for anyone who has a hedge fund and/or private equity interest in order to limit their exposure.

Legal Requirements In Order to Be Enforceable

In order to be enforceable, postnuptial agreements must be:

  • Entered into voluntarily;
  • The product of full disclosure by both parties;
  • The result of a negotiation between both parties that are represented by their own attorneys; and
  • Fair.

These contracts can govern:

  • The rights and obligations of both parties to buy, sell, use, transfer, exchange, lease, mortgage, dispose of, manage, etc. property;
  • The disposition of property upon marital dissolution, death, or the occurrence of another event;
  • The establishment, modification, elimination, etc. of spousal support;
  • The creation of a will, trust, or other vehicle to carry out the agreement; and/or
  • The ownership rights in and/or disposition of life insurance policy benefits.

Talk To Us about a Postnuptial Agreement

To learn more about postnuptial agreements in Florida, please contact the Fort Lauderdale offices of Sandra Bonfiglio, P.A. We are prepared to offer you immediate assistance.

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