A postnuptial agreement is not just for protecting the interests of a wealthier spouse, and it is not a cynical or mistrustful legal instrument. These are just a few of the common myths that persist about prenups and postnups. In fact, postnups (like prenups) are practical tools to protect personal interests, clarify financial arrangements, and support estate planning. To ensure enforceability, attention must be given to how the document is drafted, signed, and maintained.
Why Couples Choose Postnups
There are several common reasons to adopt a postnuptial agreement in Florida:
- You did not sign a prenuptial agreement before marriage but want to address assets, debts, or inheritance now, possibly after receiving a sizable inheritance or experiencing business growth.
- You have started a business, and you (or your investors, creditors, or employees) want clarity about ownership or division if the marriage ends.
- If your marital status has financial implications for other people, it makes good business sense to provide legal assurances.
- Your estate planning goals have shifted, especially if you want to protect children from a previous relationship. These reasons are further outlined in our post 3 Reasons for a Postnuptial Agreement.
Couples with changing financial landscapes often find a postnup more suited to their current situation than a prenuptial agreement signed before the wedding.
Florida’s Legal Requirements For Enforceability
Florida courts apply general contract law to determine the enforceability of a postnuptial agreement. To hold up in court, your agreement must be:
- Written, signed, and properly witnessed, with acknowledgment before a notary.
- Executed voluntarily, free from coercion. Courts will examine whether both parties had time to review the agreement and access independent legal advice.
- Supported by full financial disclosure, which is mandatory.
Common Challenges And How To Prevent Them
- Allegations of duress: Postnups signed without time to reflect or under pressure raise red flags. Allowing a review period can help prevent this.
- Claims of incomplete disclosure: Both parties must list all assets, including bank accounts, real estate, valuable items, and business interests. Attaching a schedule of assets helps demonstrate transparency.
- Unfair terms: If the agreement leaves one spouse in severe financial hardship, courts might find it unconscionable. Including balanced spousal support terms and contingency planning can mitigate this risk.
- Ambiguity: Lack of clarity around terms like “separate property” or “marital property” can lead to disputes. Clear definitions and formulas help reduce confusion.
How Cobb Cole’s Family Law Group Can Help
- We help clients create a reliable plan for protecting financial assets in divorce, including business ownership, investment accounts, and estate planning.
- We assist clients with complex needs, such as blended-family planning or entrepreneurs managing growing assets. These needs are similar to those we address in our post on navigating a high net worth divorce in Florida.
When Postnups Make Sense Even Without High Assets
- You or your spouse left the workforce to care for children or relatives and want assurance of equitable support.
- You signed a prenuptial agreement years ago but need to update it based on new circumstances, such as business changes or inheritance.
- You prefer to resolve sensitive financial issues now rather than relying on court decisions in the future.
Avoid Routine Postnuptial Agreement Pitfalls
- Treat the process seriously: Each spouse should receive independent legal advice.
- Allow time for review: Signing too quickly or under pressure undermines the agreement’s validity.
- Update the agreement as needed: Income changes, new children, or health shifts can affect fairness. Periodic updates keep it relevant and enforceable.
A postnuptial agreement, when drafted properly and executed with care, offers Florida couples a way to plan for the future without assuming the worst. By focusing on clarity, fairness, and transparent procedure, the Family Law Group at Cobb Cole supports clients seeking legal certainty and financial confidence.
