Florida Postnuptial Agreements

A postnuptial agreement is a written contract between spouses, signed after the marriage, that defines how property, debts, and alimony will be treated if the marriage ends. Unlike a prenuptial agreement -- which is governed by the Uniform Premarital Agreement Act -- a Florida postnup is evaluated under common law contract principles, with the additional layer of the fiduciary relationship between spouses.

When a Postnup Makes Sense

Couples often turn to postnuptial agreements when life events have changed the assumptions of the marriage. Common scenarios include:

• One spouse has launched, acquired, or inherited a business that the couple wants to keep separate
• An inheritance has been received that the couple wants to preserve as nonmarital
• One spouse plans to stop working to raise children, and both want to predefine the financial consequences
• The couple has overcome a serious marital problem and wants to set ground rules for what happens if a similar problem recurs
• A spouse who would have signed a prenup but ran out of time before the wedding

Enforceability Standard

Florida courts evaluate postnups under the framework summarized in Casto v. Casto, 508 So. 2d 330 (Fla. 1987), and refined in later decisions. A postnup may be set aside if:

• It was reached through fraud, deceit, duress, coercion, misrepresentation, or overreaching, or
• It makes an unfair or unreasonable provision for the challenging spouse, given the circumstances of the parties

If the challenger meets the threshold of unfairness, a presumption arises that the agreement was the product of inadequate financial disclosure or inadequate knowledge of the other spouse's resources. The proponent of the postnup then has the burden to show that the challenger had general and approximate knowledge of the other spouse's assets and income before signing.

Best Practices for an Enforceable Postnup

• Separate, independent attorneys. Especially important for postnups, where the fiduciary relationship between spouses heightens the risk of overreach.
• Full written financial disclosure. A schedule of all assets, debts, and income, supported by current tax returns and statements.
• Adequate time between presentation and signature. No ambush signings.
• Substantive fairness. Terms that completely disinherit one spouse after a long marriage are far more likely to be set aside than a balanced division.
• Consideration. The continuation of the marriage is typically the consideration; however, courts also examine whether each spouse received something of value in the agreement itself.

What a Postnup Cannot Do

A postnup -- like a prenup -- cannot waive a child's right to support or bind the court's future best-interest analysis of time-sharing. Any provision that attempts to do so is unenforceable. Provisions waiving alimony are enforceable when the agreement otherwise meets the validity standards.

Marital Settlement Agreements vs. Postnuptial Agreements

A postnuptial agreement is not the same as a Marital Settlement Agreement (MSA). A postnup is signed while the spouses are married and intend to remain so. An MSA is signed in contemplation of dissolution and is filed with the court in an active divorce case. The MSA is incorporated into the final judgment and is enforced as a court order, not just as a contract.

Call 786-522-1411 to draft or review a Florida postnuptial agreement.